Mediation – a better way of resolving disputes
What’s in it for us?
We already have comprehensive Grievance and Disciplinary Procedures – why would we need mediation?
When a workplace relationship between two (or more) individuals is in danger of irretrievable breakdown, a skilled intervention by a truly impartial person may throw a different light on entrenched attitudes, facilitating a degree of reconciliation.
Disciplinary and Grievance procedures are often confrontational or even adversarial and make it difficult for the protagonists to work together subsequently.
Mediation is a process by which an impartial third party helps two or more disputants work out how to resolve their conflict.
- A mediation intervention frequently helps to re-establish a productive working relationship.
Not only is this valuable in itself, it also avoids the problems often associated with redeployment.
- Even if the two parties are not fully reconciled, an improvement in the situation reduces the likelihood of escalation of the procedures to the highest levels, which can be prodigal of time and effort for senior management.
- If the situation cannot be rectified and formal Grievance or Disciplinary Procedures have to be reactivated, then Employment Tribunals are expected to take into account the efforts the parties have made to resolve the dispute in-house.
A central theme of the Employment Act 2002 is a meeting to discuss an issue before taking a case to ET. This aims to ease the burden on the Employment Tribunal system by encouraging employees and employers to discuss disputes within the workplace and to consider alternative ways of resolving them.
When would we use Mediation?
Mediation may be beneficial in any circumstances where there is a disagreement between people.
In the workplace, it can be used at any stage of a Discipline or Grievance procedure, but the earlier it is invoked, the better the chance of success in resolving the situation fully and restoring constructive working relationships.
Often the protagonists in a dispute or grievance may develop polarised standpoints without having considered the other party’s angle; colleagues, managers, personnel / HR staff and TU Representatives may be seen as dividing into opposing camps, lacking impartiality.
A typical example is when communications between management and employees over changes in working practices break down and neither side is really listening to the other. The impartial mediator is able to reflect each side’s views to the other without having any vested interest in the outcome.
Mediation is often used when bullying or harassment allegations have been made. Sometimes innocent actions have been misinterpreted: the mediator does not evaluate the rights and wrongs of the case, but encourages those concerned to reflect on the situation. Perhaps there are cultural differences to explore, perhaps there has been a genuine misunderstanding of things that have been said. A formal investigation may leave everyone feeling defensive or victimised; if this can be avoided, the stress will be less for all concerned.
Similarly, mediation may be helpful in disciplinary cases, especially at the earlier stages when the ground is being prepared for warnings. It reduces the possibility of misunderstandings arising, possibly through fear of loss of face, which may only come to light when the situation has escalated to the dismissal stage – or is at Employment Tribunal.
How do we set up Mediation?
The mediator must be acceptable to all the parties involved in the dispute; he or she may be a trained member of staff from another part of the organisation or may be a qualified independent external mediator. It is essential that the mediator is perceived as completely impartial.
The mediator will adopt the process best suited to the circumstances. Typically, he or she will hold discussions with both parties separately, make representations to each on behalf of the other, then may bring them face-to-face to explore the issues and to work towards building agreement. The mediator focuses on future behaviour, rather than past. The process is a low-risk option for the participants because they have complete control of any action taken or decisions made; the mediator facilitates the dialogue but does not seek to promote or impose particular solutions.
The mediation process is voluntary and each party has the choice of withdrawing if they wish. All must agree that everything that is said is confidential to the participants and is ‘without prejudice’. The safe environment thus created is conducive to the revelation of previously unsuspected agendas and to the breaking down of barriers.
The majority of mediations last one day or less and result in improved understanding, usually achieving a sustainable resolution.