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Mediation of Workplace Disputes

DEFINITION: Workplace Mediation is a confidential, informal and voluntary process whereby an impartial mediator facilitates communication between those in dispute to assist them in developing mutually acceptable agreements to improve their future working relationship. Mediation can be effective in both union and non-union settings and at all levels of the organization.

 

BENEFITS: Workplace Mediation offers important benefits to employers and employees alike. It provides fast, creative, mutually satisfactory resolutions. When a dispute is mediated shortly after it arises, the chances of optimal resolution are much greater: the parties' differences have not had a chance to fester, the situation is generally more fluid, and the parties have more resolution options available to them. Mediated resolutions work better and last longer than authoritatively imposed resolutions because everyone involved has a stake and buys into them. Moreover, mediation fosters mutual respect through improved communication, and can mend and preserve frayed working relationships even when the parties are extremely hurt and angry.

Mediation within the workplace generally looks very different from mediation within the context of litigation. The primary goal of workplace mediation is to leave the parties better able to work together. Traditional "settlement conferences," in which the mediator separates the parties and shuttles back and forth between them, often will not be adequate to this task; the parties need to work through their differences together.

Many disputes arise out of a failure by either party or both parties to communicate, understand or consider the needs and interests of the other. People fix their attention on the question, "Who is right and who is wrong?" and become blind to the possibility that both may have a legitimate point of view. The mediator's task is to open communications between the parties focussing on the reasons for the positions they have taken with each other, helping both parties to understand as fully as possible their own and the other's view of the situation. The mediator encourages both to look at the dispute through different lenses: What do they think will work as a practical matter? What do they think will be fair? What do they think will best honour and promote a good working relationship? As the parties gain an expanded understanding of the situation, their ability to work together toward resolution —and after resolution—increases.

The Mediation Process

A workplace mediation of low complexity can often be completed in one day with a follow-up session scheduled 1 to 3 months after. Our mediators will consult in advance with an organizational representative to clarify expectations with respect to confidentiality and reporting back, and to obtain information on the history of the conflict. Next, they will meet with each person individually (usually around one or two hours each) to understand the issues from each person’s point of view. Then (when the disputants are willing) the mediator will bring the parties together for a face-to-face mediation session (usually around two to four hours). The mediation meeting is structured in six steps in order to encourage constructive communication and clarification of the main issues, and help disputants to come up with mutually acceptable agreements as to the way forward.

These voluntary agreements are then usually written up at the end of the mediation and provide the basis for a follow-up meeting with the mediator at some point in the future in order to see how the agreements are working out.

When is Mediation Effective?

Virtually any difference that arises in the workplace can benefit from mediation if the parties are willing to deal directly with each other and if the company provides the resources for mediation. Indeed, over time, a workplace in which mediation is the preferred or presumed dispute resolution mechanism is likely to become a workplace in which colleagues and coworkers need less assistance in working through differences and begin to become natural collaborators. However, there are certain types of workplace conflicts in which any company would be well-advised to offer mediation.

These include:

1. Sexual harassment complaints. People often assume that parties to a sexual harassment complaint cannot work together to resolve the dispute. That assumption can do both parties a disservice. Many hostile environment complaints arise as a result of differences in perception about what is funny or flattering and what is offensive behavior, or they arise as a result of one person's failure to respect the other or to understand the effect of his or her behavior on the other. If the parties are willing to talk with each other, these complaints can be mediated to mutually satisfactory conclusions. The employer can save its relationship with both employees and avoid an expensive and painful lawsuit.

2. Disputes between employees. Sometimes interpersonal differences prevent coworkers from functioning effectively together. If the company needs both employees and wants them working together harmoniously, mediation can be very effective. The employees are offered a controlled setting in which to air their differences, guidance in communicating effectively about them, and a chance to make agreements about how they will function together in the future.

3. Deteriorating performance. A good employee can stop performing well for many reasons. Often, when the manager attempts to address the problem, the employee responds with fear and defensiveness, resulting in further deterioration. Mediation between them can help each understand the other's needs, requirements and requests and can yield an agreement about how they will work together in the future. Both are more likely to observe such an agreement because both had a hand in creating it.

4. Terminations. When an employer chooses to terminate an employee even though the termination poses litigation risks, mediation on the terms of the separation can be very helpful. Through the mediation process, the employee has a chance to communicate severance needs and to affect the nature and quality of the severance package, while the employer has an opportunity to eliminate its litigation exposure. Mediation can also be beneficial emotionally: the employee may never agree that the termination was warranted but will more likely feel that he or she had a fair hearing, and may come to understand the reasons for the employer's action. These realizations can make it easier for terminated employees to move ahead with their lives

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