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Who needs a mediator anyway?

Posted in : HR Updates on 29 November 2017
Steve Tweed
&|Ampersand

My previous article raised the question ‘What sort of mediation do you want?’. Of course, prior to posing this question the decision to engage an independent third-party mediator will have been taken by all the parties involved.

So, what does a mediator do, and who needs them anyway?

This is a common question, as people try to understand the distinctions between terms such as mediate, conciliate, facilitate, or simply advise? At the core of the decision to engage a mediator is always a wish to find a solution to what the parties determine is, in some way, an intractable issue. I think a good description as to what a skilled mediator brings is “Any process for resolving disputes in which another person helps parties negotiate a settlement.” [i]

The key phrase here is “any process”, so the emphasis is on the outcome rather than applying a formula. An independent skilled mediator can assist in finding a pathway from an otherwise complex or even stalemate position, to a solution that is accepted by all parties. The right process is the one that will best meet the needs of the situation and the parties.

Can’t we do this ourselves?

Notwithstanding the benefits, it is not unusual for parties to question the need for an independent third-party mediator. After all, why should an employer require an independent third-party mediator when there is a competent resource internally to undertake the work, in senior managers or HR professionals? Equally, employee representatives / trade unions have experienced people available from within their own resources.

However, engaging external mediators is less about the competency of internal people, but about a recognition that bringing about a successful conclusion to an issue, individual or collective, can benefit from external insights and an independent perspective. It can have the added value of engendering confidence in the recommendations that emerge, both in the parties to the process and in the people affected.

External mediators can assist in a range of situations. Difficult and complex issues can arise, where new ways of thinking or possibilities must be found. New challenges facing the parties can also mean that an external presence and a mediation approach allows more space for the parties to think through the issues and consider different perspectives. Frequently, the external mediator is planned at an early stage because either the scale of the issues or their complexity has been identified.

At other times problems are referred to external mediators because they are at a point of serious dispute where, without a resolution, industrial action may be a next step. The potential loss of business and reputational damage for employers, loss of income for employees and a further breakdown in trust, which will have to be rebuilt, are all good reasons to consider external mediation. In individual cases the next step may be litigation with its costs and consequences, and there is a strong argument for external mediation here.

In these situations, external mediation can assist.

Space, thinking and thoroughness

That assistance begins immediately, as the starting plenary session is used to set out the issue and its dimensions, so that the facts of the matter and the associated perspectives are understood by everyone. In separate meetings, convened to gain a more in-depth understanding, what lies behind the issues or an impasse can be teased out, and each party can express views in confidence to the mediator that may not be possible in an open meeting.

An experienced mediator should be able to explore the potential consequences of the positions and desired outcome being sought, can challenge and, in some situations, provide a much-needed blunt analysis. Whether the parties are starting out with unrealistic goals or have already reached entrenched positions a direct approach by the mediator may be valuable in kick-starting a search for solution and agreement.

Which organisations?

The use of external mediation is increasingly widespread - large and small private companies, public sector employers and the voluntary / not for profit sectors have all benefitted in my experience. Type of organisation is not the issue - as I pointed out in the article, ‘What sort of mediation do you want?’, “If the objectives of the parties do not have an element of overlap then no amount of mediation will produce an acceptable outcome.” So in any organisation where there is agreement that some assistance is needed including for the parties to acknowledge and understand the other side’s perspective, then external mediation is there to help.

There has been a tendency in NI to utilise external mediation in the final stages of individual cases, however more employers and employee representatives / trade unions are moving in the direction of mediation as part of the tool-kit to support progressing issues positively and quickly as well as in the later stages of a negotiation. While the avoidance of costly disputes and reputational damage can be a driver for this change, the positive experience of ‘early stage’ mediation, particularly in the ROI is also having an influence.

In individual cases, my experience suggests that as the external mediator can be truly independent and even-handed, an employee’s confidence in the process is often restored, and this is central in bringing about a solution acceptable to all.

Cost / Benefits

Avoidance of disputes is only one reason to enter mediation. There are a raft of transaction cost minimisers including the length of time from problem to solution, the quality of final documentation, and a ‘call back’ facility for the parties, should a matter of interpretation subsequently arise. This last - a ‘call back’ facility - has the effect of underpinning the process, the outcome, and the parties trust in the mediator and in themselves. Trust levels between the parties can be constructed (even re-constructed in certain circumstances) through repeated interaction(s), over time, in the hands of a skilled mediator. A process of mediations can assist the parties to increase trust levels in each other, particularly if the mediator is skilled in the area of trust formation.

The result in any settlement is for all the parties to have confidence in the process and to implement an agreed outcome. An independent third-party mediator can instil that confidence in the process, as well as bringing a wealth of experience to bear in seeking resolution.

[i] Jennifer E. Beer (Author),‎ Caroline C. Packard (Author),‎ Eileen Stief (Contributor), The Mediator's Handbook, 4th Edition, 2012, Gabriola Island, BC, New Society Publishers

This article is correct at 29/11/2017
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Steve Tweed
&|Ampersand

The main content of this article was provided by Steve Tweed. Contact telephone number is 07763 242608 or email stweed@ampersand.ie

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