The Parties’ Role in Workplace MediationPosted in : Workplace Mediation on 21 December 2017
In the third of a series of four videos on workplace mediation, Scott Alexander, Head of Learning & development at Legal-Island, interviews mediator Dorcas Crawford about the role of the disputing parties in mediation. Other videos focus on:
- How mediation works
- The importance of neutrality in mediation
- How to embed mediation in your organisation
In this interview, Dorcas:
- Considers why it is so important for the parties to be in control of finding their own solutions without the mediator suggesting any
- How the mediator sets up a room to maximise involvement in problem-solving
- Describes other practical techniques to encourage the parties to focus on problem-solving
- Looks at some possible solutions that arise out of workplace mediation
- Considers when mediated settlements might or might not be binding on the parties
Scott: In the first couple of videos, we looked at why mediation works, and then looked at the whole neutrality of the process, in particular, the neutrality that's required on the part of mediator. In this third section, we're going to look at the role of the parties in mediation, because they also have a role to play, a very big role in mediation.
So Dorcas, mediation keeps the parties in control of the solutions, but the mediator, the neutral mediator has to help them find those solutions. But the mediator's not allowed to suggest anything. So how can a mediator help parties find solutions when they can't give them something?
Dorcas: Yes. You're right. Mediation's very much based on the focus being on the parties to come up with their solution, and that's important because as we've discussed previously, if they come up with their own solution they're much more likely to want to make it work and to stick to it. And so yes, it is crucial that they are at the forefront, and one of the things I particularly love about mediation is that, whereas in litigation or in arbitration, they aren’t. Often the parties bizarrely tend to be the least important people.
So the tribunal becomes important, the arbitrator becomes important, the documents become important, the lawyers become important. And sometimes, I previously did nothing but litigation in my career, and you would find a client sitting in a corner and it's their case and they are really not at the forefront at all. That's because of the nature of the process, not deliberate in anybody's part.
In mediation they are very much at the forefront. So for example, when I'm mediating, even if there's a team of lawyers in the room, or experts, or in the initial meeting when I try to bring all the parties together, I will always have the two or three parties at the end of the table near me. The lawyers will be further down.
It's crucial that they're at the forefront and that helps them to understand the concept that it's their problem, therefore it has to be their solution. And I will say openly at the beginning of a mediation, A, I'm neutral, which was previously dealt with, but B, I'm here to help you find your solution, but it is your solution, and that's crucial. So your question was, how do I keep them at that forefront and help them to find their solutions without suggesting any? And again, that's important for the mediator to take a back seat.
Some small things that maybe impact could be sometimes the way the room is set up. So I will always get to the room for the mediation a good bit before for anybody else does. What tends to happen is that when people come into a room if there are two of them and there's me, they will aim for the two seats opposite each other at a table and put me in the middle. I will deliberately move my seat so that I'm sitting back. They're not opposite each other at the table. In fact, I'll get rid of the table if I possibly can, and they're looking at each other.
And it's small things like that, and I could tell you lots of those tricks, but that's a typical example of what puts them in charge. And I sit back and I ask them deliberately to address each other. And so I'm sitting back from it. So already subconsciously, they're taking control, not me.
Scott: So they become part of a process and they're not at odds with one another just through the setup. And do you use other things? Do you ever use a flip chart?
Dorcas: I always use flip charts. Well, not always, but nearly always.
Scott: And why is that? Because that’s not suggesting anything . . .
Scott: It's suggestive in my own mind of finding a solution, management meetings, solving problems. It’s not about, "Let’s beat the other one about the head."
Dorcas: Yes. It's another tool for focusing on something that they can maybe work on jointly. So for example, I will use a flip chart and I will get parties to use them. I will ask them deliberately to suggest things that they think are causing the problem, or more likely things that they think might work to help, and I'll use headlines. But I will either get them to write it up themselves and I'll use simple words. So if they talk about, "Well, we can't actually have conversations because we end up fighting. We don't meet very often to talk," etc., etc.
I'll get them to summarize that into a headline like communication, a broad term, but I'll get them to agree on the word they're going to use. And one or other of them will be the person who writes that up, so again, they're taking control. And these probably sound like trivial things, but they all create an atmosphere of, "This is not my solution. This is yours."
Scott: And it's also about finding that solution and not beating the other person.
Dorcas: That's right.
Scott: It’s about, "Hey, we're going to move this forward. Let's find that." So give me maybe an idea about the parties, or the kind of solutions the parties come up with that you wouldn't find outside mediation.
Dorcas: Often, it's really practical, and I particularly like mediations where they are engaged. Or sometimes I call them facilitations because sometimes people don't want to actually identify a thing as a dispute. They're a wee bit anxious about it being called that, and so sometimes I'll just call it a facilitated conversation. I'm not precious about what it's called, but really what we're talking about is using mediation skills to help resolve a problem.
So I like when they start as early as possible. So I'll give you an example like you asked for, where it's earlier on before the relationship has really broken down to a point that is very difficult to repair. So the kind of things that happen when you pick them up early on are typical. Like I just said, they can't agree on something. They don't communicate, in broad terms, but the example of that might be really obvious. Two very senior people in an organisation, and it's quite a shock sometimes to find that they don't meet regularly. They don't have regular meetings.
That sounds like a really simple thing. They maybe started off having regular meetings, but sometimes, Tuesday doesn't work for you, Wednesday doesn't work for me, I'm off now. And one of the simplest things I will do with two parties is to say, "Okay, let's look at your diaries for the next six weeks, and let's help you put this into your diaries. So you tell me when would be good for you. Will that work? No, I don't think it'll work for you."
This does not sound like rocket science. It generally isn't, but what it is is somebody outside helping them to agree because they couldn't sit down at a table with each other. Because relations have become so dysfunctional that they can't even agree on a time to meet, never mind what's said at the meeting. So that can fix things in an amazing way. I'm very conscious, this sounds so simplistic, but I've seen it work so many times…
Scott: And so have I. It's the kind of thing, of course, that a tribunal wouldn't turn round to two parties to say, ‘I’ll tell you what, why don't you meet every Monday morning at 10:00.?’
Dorcas: And then the next thing, of course, that really needs to be worked on, and this is where it sometimes gets very touchy and tricky, and where your conflict management skills are required is where they can't agree on that, and they say, "Oh, but when we've tried to do that in the past you've always done this. You've always done that." And moving them forward subtly into the future rather than the past, but allowing enough of the expression of their frustration, so there's finding a balance between the expression of that frustration and then helping them move towards a solution for it.
Scott: And it would be the same if somebody said something horrible in one person's eyes, to the other. And, you know, you don't say, "Give them an apology." But that would be the obvious answer or something similar.
Dorcas: Well, the kind of typical thing might be if I asked why they were upset by what the person said. So rather than saying, "I can see you're really upset by what she said," I would say, "How do you feel? Well, how did it make you feel when that person said that? What was your main feeling?" And sometimes you may need to help with, was it anxiety, was it frustration, was it something else?
But I would certainly not be saying, "I can tell that you felt really angry." I would say, "How do you feel about that?" And then I would often ask the question, "What do you need to hear from the other person in order for you to move on from that?"
Scott: Or put it on a scale of 1 to 10?
Scott: So those are the little subtle things that a mediator would use to help the parties move forward. Grand. If you reach agreement, is it binding?
Dorcas: Yes. So in principle, if it's an agreement. So there's a great range from the early mediations I'm talking about saying, "Yes, we're going to agree on a Monday or on a Wednesday." Obviously, that can't be legally enforced in any way, but it has such strong impact on people wanting to stick, it’s that same thing about wanting to stick to their solution. At the other end where I think probably is more what your question's aiming at is, is there a legally binding solution if you have a situation where people have agreed to resolve a difference that was heading towards tribunal, for example, and there's a legal aspect to it?
If they reach agreement then, yes, it is drawn up into a formal written agreement. Until the point when it's written and signed it's not going to be binding on the parties, and that's important because it gives them freedom to explore things during a mediation. But once they have actually reached an agreement that is going to resolve something that was otherwise heading towards a tribunal or an arbitration, then that is drawn up very carefully and signed by the parties and it becomes legally binding.
Scott: And that would be through the normal compromise agreement, or potentially an LRA agreement if there was one required. But if it was putting people back together in the workplace, that generally isn't binding. It's the fact that the parties have reached their own solution that makes it stick.
Dorcas: That's right. And I get them to use their own words. If there are lawyers involved, which in early mediations tend not to be, I would get the lawyers to work with their clients. And we would try to work around a table as well. I don't keep people in separate rooms if at all possible. I keep them working together. If there are no lawyers and just the parties involved, even then I will make sure that it's their own words that go into the agreement, rather than something I might try to impose on them.
Scott: So thanks very much, Dorcas. That's the third video in the series. In the final video in this series, we're going to look at how to embed mediation into the culture and into your organisation.
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