The Mediation Process
Mediation in the workplace is alive and well - and is being used in many organisations as the preferred route to resolving interpersonal conflict. Utilising Mediation often generates the optimum solution for the parties and for the company as it prevents the unwanted organisational problems that emerge from Formal Investigations.
We present below a short outline of the Mediation process:
- The Mediator will meet separately with both parties for pre-mediation meetings and gather a brief outline of the complaint and response. They will then clarify the process in terms of engagement, and explain the ground rules and other approaches available to the two parties should mediation not be successful.
- It is important that the parties understand that they are responsible for the solutions arrived at in mediation and that coming to such solutions will be within their control, but will be facilitated by a skilled Mediator.
- The Mediator should clarify what is confidential in the issues discussed with both parties. This is to ensure that those issues are not transferred in discussions with either party.
- The Mediator will then meet with both parties simultaneously to briefly outline the process that will be used for the mediation. They will also take any further questions or clarifications concerning process. The Mediator will then meet separately with the parties, listen to and fully understand their issues. They will provide an opportunity to each individual to check that they have correctly heard and understand all the issues.
The Mediator will help the parties to clarify one another’s issues to the extent that they can at least understand where the other person is coming from. This part of the process will initially involve individual meetings that may quickly/slowly get to clarify these issues in a joint meeting between the Mediator and both parties.
The parties, with the help of the Mediator, will attempt to identify some values and future behaviours that each would find acceptable from one another. This will hopefully move them towards a ‘solution’ that builds some common ground and is focused on the way in which each of the parties should treat one another in the weeks/months/years ahead. If this future-oriented solution is mutually acceptable the parties would need to work with the Mediator to:
- Anticipate future road blocks and find ways around them, and
- Put in place the enabling conditions for the success of the new arrangements.
The parties would also need to put in place review mechanisms whereby they themselves could monitor progress with the outcomes of the Mediation. Some assistance may be required from the Mediator in the early phases of these reviews and from line management in the latter phases.
The above is just an outline. The parties involved have to place their trust in the Mediator’s experience and skill, in that they can accept that the mediator may well deviate from the above if circumstances warrant such a move.
The use of Internal/External Mediators.
Many organisations provide a mediation service for more complex HR issues that arise in the workplace. Key among these would be Bullying & Harassment claims or other problems that have not been able to be resolved at local company level. Some organisations train internal Mediators, and a particular Mediator is usually agreed upon between the parties who have the disagreement. Alternatively, organisations may well go outside the company to look for an experienced and skilled External Mediator. This is generally the case where they do not have trained Mediators within the organisaton, or where the issues are of a sufficiently difficult nature.
Semi-formal Mediation Approach
In either of the above situations mediation should be seen as the first semi-formal approach to resolving the issues between the individuals. We say semi-formal insofar as when one has passed from the initial informal local stage, one arrives at this semi-formal stage. Here there is an increase in the degree of formality. However this level of formality is nowhere near the formality of a full Investigation.
Appointment of an External Mediator
When using an external Mediator it is usual that the two parties will have to agree on the appointment of a particular individual to mediate their case. Normal practice is that organisations usually have access to a number of experienced and qualified Mediators. They then propose one whom they regard as the most suitable for the particular case, with both parties hopefully agreeing on the chosen Mediator. Failing immediate agreement on the nominated Mediator, the consultation process would continue until a Mediator agreeable to all sides is appointed.
Terms of Reference
The terms of reference need to be agreed between the organisation and the Mediator. This task is usually undertaken by the manager within the organisation charged with trying to bring the dispute to a satisfactory conclusion. It could for example be the manager of either party involved in the case, or alternatively it could be the HR Manager. The task that such a person has is to write to the Mediator requesting them to mediate, and describing some of the issues and parameters around the mediation. It’s also important to give the Mediator relevant internal policies such as the Dignity & Respect at Work Policy.
Skills of a Good Mediator
- Experience in handling complex mediations.
- Good attending skills – focus, impartiality, caring and withholding judgement.
- Strong listening skills.
- Good questioning skills – consistent across all interviews to all parties.
- Skilled in conflict diagnosis, analysis and resolution.
- Good consensus building skills, including re-framing techniques.
- Ability to look at the total picture and help the parties to do likewise.
The next stage of the process should see the Mediator sharing with the people involved the process and procedure that they propose to use. The Mediator may be required to modify their normal process depending on the particular nuances that exist in an individual case. In addition there may be some negotiation around the fringes to satisfy particular viewpoints about the process that may be held by either party.
In some situations it may be appropriate to provide a formal pre-meditation agreement. This would include such items as roles, dispositions of the parties, process, confidentiality and clarity about nothing being said at mediation being able to be raised in any Court action.
In addition, the ground rules around certain ‘non-discussables’ or ‘non-disclosables’ that are told to the Mediator by either party in their first pre-mediation meeting should be formally agreed as such and adhered to throughout the process. A Mediator upon hearing both sides will make a determination on whether this dispute can be mediated or not. They will withdraw in a situation where, if for example, they feel that either party is not fully committed to the process of finding a suitable resolution.
The Mediation Process
It is usual that the Mediator will talk with each of the main persons in the dispute, commencing with the Complainant. The first task during this consultation is to establish what the unacceptable behaviour is, in the view of the Complainant and how regularly this behaviour is occurring along with how it affects the Complainant. The Mediator should be at pains to let the Complainant clearly see that they fully understand the situation. They shall then put in place whatever checking mechanisms are available so as to ensure that a Complainant is confident their situation has been fully ‘heard’.
The Mediator will then go through a similar process with the Respondent again taking pains to clearly understand the Respondent’s view of their behaviour towards the Complainant.
In these meetings with both parties the Mediator should make strenuous efforts to build trust with the parties as this is one of the principle building blocks for a potential settlement. The disputing parties will develop their trust in a Mediator if they adopt a caring, understanding mode and clearly appear not to take sides in the listening part of their data gathering.
It is preferable that the Mediator does not ‘carry messages’ between Complainant and Respondent. Hopefully the Mediator will be able to ultimately create a climate where each of these individuals will be able to address the issues at hand and their feelings during later face-to-face meetings, rather than hearing of such issues as transmitted by a ‘messenger’.
Building towards an Agreement
The next important phase for the Mediator is to develop the outline of a way forward from what emerges from the ‘stories’ of the Complainant and the Respondent. At these meetings (or later ones) the Mediator is likely to propose some values to which both sides could subscribe and to develop these further into some specific behaviours and actions that would give practical application to these values. In so doing the Mediator should look for behaviours around particular flash points that may have been occurring between the individuals.
Typical Acceptable Values/Behaviours
Dignity and Respect
Will address each other directly but in a calm respectful manner, both in private and in public.
Support and Review
Will provide support to one another on day-to-day issues and will always review work directly with one another in the first instance.
Allocation of Credit for Work
Will give direct and indirect credit for work done to the party that has undertaken the work.
Will provide all necessary collaboration, information and feedback to facilitate optimum team performance.
Will respect each other’s right to be different individually, and together seek to find synergies within that difference to enhance a better performance and harmony in their relationship.
Sharing the Values and Behaviours
Once the Mediator has achieved their own clarity about these values and behaviours, it will be necessary to initially discuss them with each of the parties. In other cases they may decide that the first airing of these values/behaviours will be with both parties present. The particular advantage of doing it individually is that the Mediator should be able to gauge more accurately how both individuals will respond to these values beyond the meeting, when they are back in the real world within the organisation.
If the Mediator has discussed these values separately and seen a clear understanding of them by the two individuals and, perhaps more importantly, a commitment to living these values and behaviours in their daily interaction at work, then it may be close to ‘sign-up’ time. This is the time when both parties commit fully to working together with full dignity and respect being afforded to both sides.
Most competent Mediators will also establish some review mechanism to monitor progress in the weeks/months ahead. It is not unusual for one or two of these review meetings to be chaired by the Mediator who would want to hear from each individual how the intervening period has gone. This review process would then be passed back to the relevant line manager who would carry out subsequent periodic reviews in a supportive manner.
Following several successful reviews it will be safe to say that the mediation would appear to have been successful. However, sometimes events can occur that push the settlement off the rails. In the case of any such flair up it is important to get both parties back talking directly as soon as possible about the issues or get them back into mediation.
- Mediation should be the first recourse if local resolution efforts have failed. It offers the best semi-formal opportunity for progress.
- The Mediator to be used is usually agreed by the parties to the dispute as is their Terms of Reference.
- The Mediator should ensure that the process to be used is agreed at the first meeting.
- The Mediator talks separately with each side so as to understand each set of issues.
- Mediators should strive to build trust and not ‘carry messages’ from one party to the other.
- The Mediator should then look for common ground where they can build towards improved behaviour between the parties.
- The Mediator should strive to agree values/behaviours for the ongoing relationship of the parties.
- A monitoring and review mechanism should be agreed prior to the end of the mediation.