Workplace Mediation

Workplace mediation is a confidential process in which a neutral mediator assists the parties to resolve their dispute in a collaborative and consensual manner. Parties to a mediation may be employees, managers, Board members or others who might be involved in the dispute.

Mediation has become an indispensable tool in dealing with workplace disputes.  Without conciliatory intervention, workplace disputes can result in work environments poisoned with conflict, lowered productivity, and the loss of effective employees.

 

A Short Guide for Parties to the Mediation Process in Workplace Disputes

Mediation is a confidential and informal process. It’s also entirely voluntary. As a process, there are various steps that must be taken if it is to be successful.

Step 1 – Understanding Mediation Benefits and Commitments

The first step is for you and the mediator to meet (usually online) and discuss exactly what is involved in mediation and for the mediator to answer any queries you might have about the process. That will take around 30 minutes at most. It will include discussion on specific clauses contained in a draft mediation agreement to ensure that you are happy to proceed to the next stage.

Step 2 – Committing to Mediation

The next step is that you and the mediator (and the other person involved in this dispute) will be required to sign a completed version of the agreement to mediate, including names. Without agreement on the terms of mediation, you cannot progress to the next stage.

Step 3 – Exploring Issues and Concerns

The third step is where you and the mediator meet (usually online) to discuss your concerns and details and needs to resolve the dispute in a confidential meeting. Prior to that meeting, the mediator may have sent you some initial questions about your dispute, so that you can prepare for the meeting. Nothing you say in answer to those initial questions or discuss in that meeting can be passed onto anyone else or used in any subsequent proceedings. You may, if you so wish, be accompanied by a trade union official at this meeting, although the representative will also have had to sign the agreement to mediate. That second meeting may last 1-2 hours and may be a continuation of the first two steps, where appropriate and necessary.

The other person in dispute also goes through those steps i.e. they have a separate confidential discussion about the issues with the mediator after they have said they understand the mediation process and have signed an agreement to mediate and accepted the terms.

Step 4 - Storytelling

At this point, the mediator will have a fair idea about the issues in dispute, some of the background and assumptions involved by both parties. That knowledge allows the mediator to plan the next stage of mediation, which is what most people think of as ‘mediation’, although you now know that mediation has already started in separate discussions between a mediator and the parties.

This usually in-person next stage (some mediations are held entirely online) will start on an agreed date with the mediator meeting the parties separately (each of the parties will have ‘their’ room) and again running through the ground rules of mediation and getting assurances on confidentiality.The parties in dispute will then be brought into a ‘neutral’ room where the mediator will introduce matters and set the scene. The mediator will then ask one of the parties – usually the one with the grievance – to tell their story to the other party. When finished, the other party will tell their story.

Step 5 – Identifying Key Issues and Concerns

The mediator may take a break at the end of storytelling stage, or the parties may agree to continue in the neutral room. The mediator and the parties will then delve deeper into the issues and try to isolate key concerns for each of the parties. These might be set out on a flip chart or other visual aids or exercises might be used to explore root causes of the dispute.

Step 6 – Finding Solutions

If what really concerns the parties can be identified, the parties can then move onto trying to find solutions to each of those issues, perhaps analysing them one at a time, perhaps grouping certain issues together. The parties will decide what works best for them going forward and the mediator will facilitate discussions, clarify positions and reality-test options identified by the parties. The mediator will not suggest solutions or options. Only the parties can decide what will work for them.

Step 7 – Settlement of the Dispute

If both parties agree on solutions in joint session, heads of agreement will be set out by the mediator and signed off by the parties. There may be a partial agreement on some matters, or there may be total agreement. The agreement may be transactional in nature and focus on structures and interactions, or it may be more transformational, focusing on building relationships going forward.Some items of agreement might need to be signed off by people external to the mediation, but they will not be informed of the other terms of agreement. Any agreement is, like other aspects of mediation, confidential. Nothing can be settled unless both parties in the dispute agree to the terms of settlement. No term can be imposed – each must be jointly agreed by the parties.

Workplace dispute agreements are seldom binding on the parties because they often involve matters which could not be enforced by the courts. If the parties wish to have a legally binding settlement, they may take the heads of agreement and seek legal advice on how to form a legally binding settlement outside of the mediation process. If the mediation does not result in agreement, the parties should be no worse off and will be better informed, not only about the other party’s case but about what is really important to them as individuals. Due to the confidential nature of the mediation process, nothing said in those joint sessions may be used in any future dispute or other processes. The ‘mediation’ joint meetings usually last 4-8 hours and a day should be set aside for the entire process.

Step 8 – What Happens After Mediation?

Assuming agreement has been reached, the parties should have enough knowledge about what the other party values that they can avoid further disputes. In the best-case scenario, the process can prove to be cathartic, and relationships can be re-built and strengthened. It is rare for parties who reach any kind of agreement to return to mediation, but that could be an option.If no agreement (or a partial agreement) is reached, the parties are free to continue with any formal proceedings open to them, in the knowledge that any information shared in the mediation is confidential and cannot be referred to in those other proceedings. mediators-workplace_dl_2017_new

Case Studies

Working From Home
NB: At time of writing, (05.06.23), The Work Life Balance and Miscellaneous Provisions Act, 2023 has been signed into law, but has not yet been commenced.) An employee who had been working from home during the Covid pandemic requested that they be allowed to continue to work from home. They explained to their employer that their personal circumstances had changed dramatically during the pandemic, and that it would solve a lot of the new problems they were faced with if permission to work from home was granted. Company policy had initially insisted that all employees were to return to working in the office full time. The employee’s line manager felt it was their duty to enforce company policy, and permission to work from home was initially denied. The employee wanted to make a formal complaint and take the matter further.

The Human Resources department offered the parties the opportunity to have an independent mediator appointed, which they both agreed to. The mediator was able to help the parties to identify each of the separate issues which had led them to make the decisions that they had. They were able to fully discuss these within the safe and confidential space of the mediation, and they arrived at an agreement which they were both entirely happy with. The matter was not taken any further.

Bullying & Harassment
A complaint of bullying and harassment was made against a senior employee by a direct report. At the time of the incident, the entire team had been working extremely hard and for long hours in order to have a new system in place and fully operational by a deadline. During a meeting chaired by the senior employee, he had asked the attendees if any of them had any fresh ideas about getting the new system over the line on time. The direct report in question made a suggestion. The chair of the meeting laughed and said “Have you even been awake here for the last few weeks? Has anyone got anything intelligent to say?” The direct report was mortified and made a formal complaint of bullying and harassment.

An external mediator was appointed, and they helped the parties to discuss what had occurred, and to ensure that there would be no reoccurrence. The senior employee made a full apology to the direct report, who accepted it, and withdrew their complaint. Part of the agreement was that the company would hold a half-day session with all of their employees on the subject of bullying and harassment, and company policy would be scrutinised to ensure that it was fully up-to-date.

Change Management
A manager made a complaint to their Human Resources department about a specific direct report who appeared to be disengaged from their work, and who was letting the other team members do most of the heavy lifting in setting up the new processes. The manager had noticed that the entire team seemed to be somewhat lacking in motivation, and ascribed it to the impact of this one employee who was not pulling his weight. An external mediator was appointed in order to help the parties work through their differences and identify the issues between them. It transpired that the employee had worked in that particular company for many years, and did not believe that the new processes would work. He also believed that nobody in the company really wanted the changes, and he was ‘passing the time’ until the whole idea was dropped, and he could go back to doing things the way they had always done them. He also felt that the manager, who was significantly younger than the employee, had barely been in the company ‘a wet week’ and didn’t understand how things were done.

An external mediator was able to work with both of the parties, and during the mediation process it transpired that neither party had fully discussed their position with the other. On the one hand, the manager was keen to make his mark and effect the changes – which in fact were prescribed by law – and prove himself to his superiors. In so doing, he admitted he had lost sight of the fact that his team needed regular communication about the change, why it needed to happen, how it might impact on them and what the overall change would look like once it had been effected. In turn, the employee admitted he ought to have asked to speak with his manager and ask about the things he was unsure of. The parties reached agreement, and a set of action points were drawn up which they both agreed to adhere to. They further agreed to return to mediation if there were any future problems.

Burnout
A manager was appointed over a team of ten employees in order to establish a new department within an organisation. This was a great promotion for the manager, and the first time they had been in charge of a team. The CEO of the organisation was known to be very hardworking, and expected the same from their employees. The manager had hoped to be able to prove themselves, and establish an outstanding nation-wide example with their new department. There were many long nights and weekends, during which the manager and CEO were in regular contact. The manager began to suffer from health issues, and started to experience short-term memory loss. His doctor told him he was signing him off work for a week, and that he would review the situation at that point. When he returned to work, the CEO immediately called him up to his office and asked him to draw up a plan to deal with all of the work he had not done while he was ‘out on holidays’. He wanted to see this plan by 5pm that evening.

The manager went straight to Human Resources and made a complaint about the CEO, and threatened legal proceedings.Human resources offered the option of an independent mediator, and both parties agreed to attend. The mediator was able to work with both parties to help them articulate their difficulties, and arrive at a consensus as to how to work together going forward. They agreed to draft safeguards to prevent a repetition of the burnout experienced by the manager, and it was further agreed that he was to take a further two weeks paid leave before returning to work. No further action was required.