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Mediation

Mediation

Mediation

When two people cannot resolve a disagreement for themselves, they need a third person to get involved. And in the escalation from a friendly nudge up to the judicial system, mediation is the first formal step.

And, since conflict is common in organisations, it’s as well to understand what mediation can and cannot offer, when to use it, and how to make it effective.

Why Use Mediation?

When two people cannot resolve a conflict for themselves, they need help. And, when it matters enough to them they might seek help. Or, alternatively, if it matters enough to the organisation, it may impose help.

There is a hierarchy of the levels of help. Broadly, there is:

  • Informal assistance
    – untrained, well-meaning
  • Formal mediation
    – trained, looking for mutual agreement
  • Arbitration
    – trained or untrained, imposing a resolution
  • Tribunal
    – trained, imposing a resolution, enforceable
  • Recourse to law
    – highly trained, imposing a resolution, with enforcement

Mediation is a skilled response to escalating conflict. So, its benefit is that it can create the space for the parties to forge a resolution, before a disagreement escalates too far.

In addition, compared to more formal processes, mediation is typically less costly to the organisation, and less stressful to the people in conflict.

What is Mediation?

Mediation is an effective way of resolving disputes. An independent person, unconnected to the dispute, is the mediator. They help both sides to reach an agreement.

The principle of mediation is highly flexible. It can be applied to settle disputes in a whole range of situations. Some examples are disputes concerning:

  • consumer rights
  • relationships
  • contracts
  • family
  • neighbours
  • employment

The mediator’s role is to help parties reach their own solution to their problem. The task ends when either:

  • Both parties agree on a solution that satisfies each of them, or
  • The parties and mediator agree that they will not be able to find such a resolution

Consequently, a mediator must avoid taking sides. They must reflect and clearly re-state the views of the parties, without making judgements or giving guidance. To assist that, both parties must see the mediator as independent, with no interest in the outcome.

They are responsible for the process, and not the outcome. And that process is principally about creating communications where both parties can listen and feel heard. This is the pre-requisite for building consensus between the parties.

Because it need two people to find a solution for themselves, mediation must be a voluntary process. Both parties need to accept the process and the mediator. It is also a confidential process. The mediator needs to set up an agreement that the discussion may not be shared with anyone outside the mediation process.

Workplace Mediation

In the workplace, mediation is often described as a form of ‘alternative dispute resolution’. It is used as a step before the more formal grievance and discipline procedures, and employment tribunals. However, the informal and voluntary nature of it mean that any agreement may be morally binding, but it is not legally binding.

What it can achieve is:

  • Better communication, empathy, and an effective working relationship
  • Helping two conflicting parties understand each other’s points of view, and emotional responses
  • Exploring their concerns and the consequent issues in a safe environment
  • Reducing the barriers that entrenched views create
  • Joint problem-solving to find a solution that both feel is fair
  • Developing the skills for the parties to resolve their differences themselves, in future

The Origin of the Word ‘Mediation’

Our modern word comes from the Latin word, mediare – to be in the middle. This gives us the sense of what it means to mediate. It is process of getting between two parties to resolve a dispute.

When Should You Consider Mediation?

Of course, mediation is no magic bullet. It won’t resolve every dispute or disagreement in your workplace. But there are a wide range of circumstances where it has the potential to help.

  • relationship breakdown
  • personality clashes
  • communication problems

It is best in situations with no clear ‘right’ or ‘wrong’ outcome; where the two people have differing opinions. It can be used between two colleagues at the same level, or at very different levels. And you can use it at any stage in the escalation of a conflict, although the sooner the better.

Some organisations also use highly skilled mediators to tackle thornier issues, in the hope they can properly avoid grievance or disciplinary procedures. Examples include bullying or harassment. However, these are serious matters, and a weak attempt at mediation by an unskilled intermediary can risk exacerbating the problem, and placing the organisation at risk.

So, When should You not use Mediation?

Mediation is unlikely to be suitable when:

  • You use it to avoid your normal managerial responsibilities
    For example, work allocation or reprimands
  • A clear decision about right or wrong is needed.
    For example, disciplinary or criminal cases
  • One party wants a formal investigation of an allegation
    For example, harassment or deception
  • One individual is unable to fully participate or give informed agreement to a resolution.
    For example, due to mental health problems, severe stress, or learning difficulties
  • The parties do not have the authority to settle the issue
    For example, contractual issues raised at mid-ranking levels

How does Mediation work?

The mediation process is usually highly structured. Many training programmes and professional mediation providers have their own proprietary process. In general terms, however, you can expect the following steps:

Step 1: Mediator meets each person individually. They listen carefully to each point of view, and what they want from the process. And then, they confirm that each person is prepared to meet the other.

Assuming both people have agreed to meet…

Step 2: Mediator again meets each person, to share what they have heard from the other, and to plan the meeting.

Step 3: The mediator facilitates a meeting between the two people. They facilitate the conversation, to be sure they each listen to the other as they express their point of view. The mediator also ensures that all issues emerge. The mediator helps them both to explore their issues, and start to build an agreement.

Step 4: When the parties reach an agreement, the mediator will document it and ask each to each endorse the agreement in an appropriate form.Often, this will take the format of a written document, which they will sign. And the mediator will witness it.

Step 5: The mediator will then close the meeting, providing a copy of the agreed statement to both parties. They will reiterate each person’s responsibilities for its implementation.

If there is no agreement, the mediator will explain what will happen next.

Step 6: In many cases, the mediator will accept a follow-up role, to monitor how the agreement is working.

Confidentiality of the Process

It is essential that whatever anyone says during the mediation process remains confidential. Unless, that is, all parties agree to any specific points. These are most likely to be actions or decisions that the parties agree to.

Clearly, the exceptions to the assumption of confidentiality is if a potentially unlawful act emerges or if there is a significant risk of harm.

What is Your experience of Mediation?

We’d love to hear your experiences, ideas, and questions. Please leave them in the comments below, and we’ll respond to everything you contribute.

To learn more…

The Mediation Pocketbook is full of tips, techniques, and tools to handle workplace conflicts and resolve disputes..

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