What sort of Mediation do you want?

Posted in : HR Updates on 11 September 2017
Steve Tweed
Issues covered:

Some time ago I met a consultant with extensive experience as a mediator in employee and industrial relations. We had a chat about the increased publicity mediation appears to have gained in recent years and I asked him how he had built a successful model. His response has stood me in good stead over the years.

 Mediation comes in many forms, some more successful than others. So, the first question I ask is, “What sort of mediation do you want?” An explanation of what is behind the question inevitably ensues.

When asking the question, I would immediately follow up with the options:

  • Whole earth?
  • Brown rice?
  • Hold hands and hum, or
  • Something a little bit more directive?

Inevitably an explanation is required, which serves to demonstrate that mediation should not follow a ‘text book’ or overly formulaic approach. Clients, both employers and employee representatives, have seldom given thought to this beyond entering a process to achieve a mutually acceptable outcome. Of course, the examples are somewhat ‘tongue-in-cheek’, although with the serious intention of providing an opportunity for the parties to consider, possibly for the first time, what they are actually looking for. There is an undercurrent of reality when each is stripped back to analyse in more depth what is on offer.

Whole earth

A holistic approach, thoughtful, reflective, and drawing on just about every relevant influence; academia, experience, extensive reading. Is this a problem? Experience tells me that this approach will be protracted, cause frustration to all parties and, importantly for the client, result in significant cost. Is there time for the proposed mediation to draw on such an extended breadth and depth of relevant matters just to be sure that nothing would be missed as the process reaches a conclusion? Generally, and especially in collective disputes, time is of the essence and increased cost is certainly a factor.

Brown rice

The mediation seeks, at an early stage, to identify the deep-seated emotional influences that the subject matter has brought agonisingly to the surface. It may take several meetings for the mediator to arrive at the point where a workable solution may be achievable between the stated objectives of the parties at the start of the process – many, many months ago – and the experiences that led to mediation.

The concern in this approach is that due to the influences that were so engrained in one, or both, of the parties the fundamental issues remain, presenting resistance to a complete and enduring solution.

Hold hands, and hum

As implied, this is the happiest beginning to the process. Everyone, on the surface at least, has a desire to work through the issues that led to them being in the same room. This is generally, but not exclusively, the scene encountered when mediating individual issues such as bullying or grievances. But below the surface, the focus is on the alleged perpetrator who is present in the room.

Eventually, tensions between the parties will emerge. The predicable “I know you feel aggrieved / excluded / unjustly treated / stressed / unwell…” (pick any of the aforementioned) signals the change in mood. For the individual employee, the alleged perpetrator is there, in the room, to document something at the end of a procedurally well-trodden path.

Is it following a procedure or seeking a lasting outcome? At the conclusion do they have confidence that they are comfortable / satisfied / believed / supported? If not, the next stop is invariably a solicitor.

Something a little bit more directive

An independent, third party mediator should be able to draw on their experience to provide information on the potential consequences of a desired outcome(s) being sought by the respective parties.

An experience gained not just in mediation, but through experience in workplace negotiations, can be a benefit to the process. Not all mediators come with that background. A sensitive, but direct approach is sometimes required if expectations are simply not achievable. However, there are times when what is required is a blunt analysis of expectations. If the objectives of the parties do not have an element of overlap then no amount of mediation will produce an acceptable outcome.

When parties have already failed to find common ground, a pragmatic and direct approach by an experienced mediator will contribute to finding new pathways and securing an agreement.

When considering mediation for a workplace issue, either collective or individual, first ask yourself what sort of mediation you want and consider the options. The above headings, while ‘tongue-in-cheek’, are actual approaches that many employers and employee representatives may recognise. In my experience, all parties involved in a mediation process prefer some direction, but in many situations have not considered the method being deployed by the ‘third party’. It is your process, you consider how you want it to proceed.

How this works in practice will be covered in future issues.

Read Steve's follow-up article - Independent third party mediation - an alternative approach for managing re-organisation - here.

This article is correct at 11/09/2017

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

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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