Workplace Mediation

Introduction

Mediation is a dynamic, structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a “party-centered” process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that she/he manages the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyses issues and relevant norms (reality-testing), while refraining from providing prescriptive advice to the parties.

Mediation, as used in law, is a form of alternative dispute resolution resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negotiate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community, and family matters.Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications, and licensing followed, which produced trained and professional mediators committed to the discipline.

History

The history of mediation goes back to Ancient Greece, where village elders used to mediate local disputes between the villagers. The activity of mediation appeared in very ancient times. The practice developed in Ancient Greece (which knew the non-marital mediator as a pyroxenites), then in Roman civilization. (Roman Law, starting from Justinian’s Digest of 530–533 CE) recognized mediation. The Romans called mediators by a variety of names, including internuncius, medium, intercessor, philanthropist, interpolator, conciliator, interlocutor, interpres, and finally mediator.

Workplace Mediation

Workplace Mediation is essentially a meeting between two or more parties who are experiencing conflict, with the aim of the meeting to lead discussions to find resolution The chair of the meeting should be somebody independent to the issues being discussed and preferably independent to the parties in the mediation.

How can mediation help in Workplace Disputes?

Mediation is just one form of managing conflict within the workplace. Mediation allows the people involved in the dispute to have a say about how the situation is handled. It provides an opportunity for an issue or issues to be openly discussed. In most situations the dispute has occurred because the parties involved have differing opinions or a different understanding of the situation. Each party has interpreted the actions of another party differently, resulting in a misunderstanding or ill-feeling. Mediation allows each party to explain their perspective in a controlled manner, hopefully in a non-threatening, non-confrontational environment. It also allows each party to get an understanding of the other party’s perspective.

There is no compulsion to reach an agreement. Mediation is all about opening the lines of communication in a controlled manner. It is not about who is right and who is wrong. It is not always between the parties. Sometimes there are a number of parties involved in the process. For mediation to be successful, all parties generally have to make concessions to change the way they act and treat other parties involved in the dispute.

Buon Consultancy ‐ Workplace Mediation Framework

Buon Consultancy has developed a framework for the conduct of Workplace Mediation that incorporates the elements of process, technique and dynamics. Whilst the core process of Mediation is very similar irrespective of the setting, the workplace setting presents some unique challenges and requirements that do not apply to other forms of Mediation such as family Mediation or community Mediation.

So, what are the factors that set Mediation in the workplace apart from other settings?

Legal Framework

Conduct and practice within the workplace is subject to a vast amount of legislation and common law including Health and Safety legislation, anti‐Discrimination and anti‐Harassment legislation, human rights legislation, flexible working regulations, paternity leave regulations and dispute resolution regulations to name just a few.

Employment Contracts and Working Conditions

Employees and employers also enter into employment contracts with each other that cover a range of matters including conditions and terms of employment. Employers also enter into national and/or local agreements with trade unions or professional employee associations and are subject to rules and regulations governing consultation with such bodies.

Ongoing Working Relationships

Unlike in family or community mediation people who work together very rarely have the option of resolving conflict by choosing not to associate with the person they are experiencing conflict. In fact in most cases none of the parties to a workplace conflict can elect to be transferred to another post or request that someone else be relocated in order to avoid contact with that person or bring about a resolution to the conflict as they are constrained by operational factors, the business needs of the employing organization and laws relating to the equal and fair treatment of employees.

Agreements and Resolution

All of the above factors also constrain the parties involved in Workplace Mediation and prevent them from arriving at agreements, or resolution of their conflict that may impinge on their employment rights, or those of another person or that may have a significant impact on the employer’s business needs or operational requirements.

Advantages and Disadvantages of Workplace Mediation

Advantages

Mediation can be an efficient and cost-effective way of dealing with employment problems. A skilled mediator will quickly identify the key issues in a case and establish what outcome both sides want to achieve. 

There are no timelines for mediation as it can be used alongside any stage of a process. It can be used in the workplace; for example, at the very outset of a grievance with a view to resolving problems informally and pragmatically. It can also be used before or during litigation. Employment tribunals or court proceedings can be time-consuming, expensive and stressful, and mediation offers a pragmatic alternative. Sometimes, even if a case is not completely resolved by mediation, it can still be very effective in narrowing the issues and steering the parties towards settlement. 

Discussions that are conducted during mediation are not binding and the whole process is entirely confidential. The outcome will only be binding if it is agreed by both parties.

Disadvantages

The main downside of mediation is that there is no guarantee of a resolution. It can be seen as an expensive process if an outcome cannot be reached. It is therefore only worthwhile if both parties are prepared to compromise. Some people want to ‘have their day in court’ and feel a sense of injustice if the process is not seen through until the end. 

Conclusion

Mediation is being used successfully in helping people resolve everything from schoolyard disputes to international conflicts. It works because it enables people to hear each other and work out their own disputes in a safe environment with neutral assistance. It works because it de-emphasizes guilt and punishment and emphasizes understanding and creating a plan for how people will get along in the future.

It works because most people in conflict are motivated to reach an agreement without taking the fight to another level (such as court), which inevitably brings with it much greater cost, much greater animosity, damaged relationships, and the risk of embarrassing public scrutiny.

Mediation in the workplace deals with conflicts in the most sensible and effective way, while being private and inexpensive.

Questions

  1. Is workplace mediation is all about finding fault.
  2. What is the role of mediator?
  3. When is mediation most useful?
  4. Are there specific preconditions that must exist for a mediation to be successful?
  5. What if the workplace mediation is not successful?

References

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