MEDIATION IS A voluntary process of conflict prevention and resolution that allows the parties in dispute the opportunity to address and resolve their issues in a confidential and private environment.
It can act as an effective way of creating safe and compassionate dialogue. In doing so, mediation enables parties to engage in a more emotionally intelligent conversation which is based not on fault or reprisal but on understanding, empathy and positive regard.
It can be effective in some of the following situations:
- In conflict prevention and management
- In single or multi-issue disputes
- For conflict of two or more people
- For developing innovative and sustainable solutions
- Resolving conflict at an early stage
In workplace mediation, an independent, neutral mediator assists the parties to come to agreement through a collaborative process.
Their role is to be non-judgmental and non-directive. The mediator is neither a judge nor an arbitrator and does not adjudicate or give decisions on the rights or wrongs of the actions of the parties.
They help the parties to identify their issues and needs and to explore how those needs can be addressed.
In order to increase the likelihood of arriving at a successful outcome for all of the parties concerned, an effective mediator must have:
- Strong listening skills
- Good questioning skills
- A high level of emotional intelligence
- Summarising skills
Stages in the mediation process
In order to increase the likelihood of a successful outcome, participants should be prepared to work towards resolution and have the authority to agree on a solution.
The focus of the mediator is to facilitate and broker agreements, remain impartial and make no judgements regarding the parties involved. Mediators assist and enable all parties to work through problems and identify solutions.
A fundamental element of the mediation process is that the parties to a dispute provide all information in relation to same in good faith, and fully disclose any relevant information which may have a bearing on the process.
Any documents containing pertinent information may be shared with the mediator confidentially and subsequently may be shared by them with the consent of the party concerned.
Mediation should be facilitated by an independent mediator, who is trained in mediation skills. Many organisations engage the services of a consultant to undertake this work for them, although this is not a requirement.
It is expected that parties to the mediation are entering into the process with the intention to address and seek resolution of the issues, and accordingly should co-operate with the mediation process to avoid unnecessary delays.
Stage 1: Pre-mediation
It is usual that the mediator will provide a formal pre-mediation agreement that would outline such items as roles, process and the requirement for confidentiality. In addition, the mediator will typically meet with each of the parties separately for a pre-mediation meeting.
Stage 2: The mediation process
A mediation normally takes place at a neutral venue, with breakout meeting rooms assigned to each party. Joint meeting rooms for facilitated meetings by the mediator are also designated for this respective use.
The mediator generally brings the participants together and invites each of them to put their side of the story across during a period of uninterrupted time so that the other party may listen to the issues raised and the mediator may ask questions to get clarification or more information.
Throughout the process, the mediator may call one or more side-meetings to speak privately with the parties in designated breakout rooms. Similarly, either party may request a break or side-meeting with the mediator to speak in confidence.
Discussions held in side-meetings will not be shared by the mediator with the other party, unless agreed with the party concerned.
Each party is expected to show respect for the other person involved. The mediator may seek to help each person understand the disagreement through the eyes of the other participant.
At this stage the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.
Having identified the issues to explore, the mediator encourages communication between the parties, promoting understanding and empathy and changing perceptions.
The aim of this part of the meeting is to begin to shift the focus from the past to the future and begin to look for constructive solutions.
There may be some time spent exploring what is said and ensuring that the issues are fully understood by all before moving to the next stage.
Stage 3: Agreement
The mediator will seek to keep the communication flowing smoothly and help the participants solve the dispute themselves. With the parties, the mediator seeks to identify some common values and mutually agreeable behaviours that each would find acceptable with a view to reaching a mutually agreeable solution that builds on some common ground.
Unlike a more traditional formal process, a mediator will not make decisions for the participants. If the problem cannot be solved during that meeting, a convenient date may be chosen to continue the mediation, if it is not resolved in the interim.
Where the parties to the mediation reach agreement, a note of agreement should be prepared by the parties before the meeting draws to a close. The mediator may assist in the preparation of the agreement. Agreement is deemed to have been reached once the parties involved have signed the note of agreement.
This agreement is a confidential, final, binding, and an enforceable agreement between the parties. The agreement represents resolution of all the issues that were raised, or could have been raised, between the parties and that concern or relate to the written issues exchanged between the parties.
If a mutually acceptable solution is arrived at, the mediator may also seek to work with the parties to identify any potential future roadblocks which may arise and determine the ways in which any issues which do arise will be resolved.
The parties may also look to put in place review mechanisms whereby they themselves can monitor progress with the outcomes above. Further assistance may be required from the mediator in this regard.
Information arising in mediation is confidential, and may not be used in any subsequent investigation. No notes should be retained by the mediator, and these should not be placed on the employee file.
If mediation is undertaken and is unsuccessful, then consideration should be given to what alternative dispute resolution mechanisms could be utilised, whether these are internal or external to the organisation.
When conflict arises in the workplace, a decision has to be taken as to how the issue will be addressed.
Mediation is a confidential process which encourages all parties to discuss all elements of the dispute. It can encourage a more swift resolution of differences and aims to find a solution that satisfies all parties. Efficient working relationships can often be restored through the practice of mediation.
The restoration of relations is a key function of mediation. It is up to the managers and business owners of Ireland to embrace this form of dispute resolution so that it becomes a culturally acceptable norm.
Derek McKay is managing director of Adare Human Resource Management.