CMP Resolution Blog by Lesley Allport and Katherine Graham.
A sacred cow of mediation is that it must be voluntary – and anything else is undermining the values of mediation and somehow almost violating people’s human rights. I disagree. And I’ll explain why.
Reason 1: Workplace mediation is different from other types of mediation
Workplace mediation ‘came over’ from community and family mediation, where the roles and responsibilities of parties to a dispute are very very different. I believe that what is right for two families living side by side, may not be right for two colleagues working, under a contract, for the same organisation.
The employer expects employees to be grown up, responsible and accountable – and these values are clear and for part of the psychological contract. So why do employers support irresponsibility, and a lack of accountability, when it comes to people in conflict? I simply do not understand this. Are your values serious, or are they window-dressing? Asking a person with a conflict to meet a skilled, trained mediator, for a private conversation, is surely not unreasonable?
Reason 2: We need to help, not to collude with, the person with the conflict
I know absolutely the horror of being asked to ‘sit down and have an honest conversation’ with someone I currently do not respect or am angry with. And it is this state, of being in a conflict, that puts us in exactly the frame of mind to avoid talking. When we are in a conflict, we do not make wise judgements for ourselves, and we often choose the path with the poorer outcome – litigation or formal action. In a real sense, when we are in a conflict we are our own worst enemy. To not make mediation mandatory is to collude with someone who has an illness which is treatable, but whose very symptoms include a passionate rejection of the cure they are being advised to take. Expecting someone to talk to a mediator simply gives that person a chance to be listened to, and empathised with; and very probably they will then feel able to take the next step and meet the other person in a joint mediation.
Reason 3: The numbers makes sense
Let us say there are 1000 disputing parties at work in UK plc who are, variously, off with stress, underperforming, taking up HR and managerial time, making poor work decisions – all because they are avoiding the ‘enemy’ with whom they need to consult. Colleagues are fed up with the situation but feel powerless to intervene and the rumour mill is distracting everyone from getting on with what they are paid to do. HR is bracing itself for a formal complaint, or simply wishing one would arrive on their desks so at least they can get moving on sorting this out.
Let us say (rather optimistically) that HR manage to persuade 10 per cent of these people to try mediation “voluntarily”. Of these, 9 mediations end in agreement; a 90% ‘success’ rate. UK plc now has ninety people who as a result of mediation feel able to go back to fully productive lives at work, and 10 people who still have a conflict despite a mediation, but are perhaps clearer about what they need to do to resolve the matter.
But there are still 900 people still in dispute and under performing. What is to be done with them? Very little, if they don’t make a formal complaint that can bring an end to the matter, albeit a win-lose end.
So UK plc does the right thing and introduces mandatory mediation – by which I mean that it makes clear employees are expected and required to attempt to resolve their conflicts through mediation in the first instance. It takes away none of their rights, they are not obliged to reach agreement, they are not obliged to even actively engage. What they are obliged to do is initially meet a mediator privately and take part in a joint meeting which they may or may not wish to engage in fully, it doesn’t matter.
And let’s say that this approach reduces “success” levels by a whopping 50 per cent. (I don’t believe it would be this low, as resistance to mediation is simply a “position”, and like all positions can be explored and ‘overcome’ and a new way of meeting that person’s needs arrived at.)
So 1000 disputing parties take part in mediation, and only 45 per cent reach agreement. This represents 450 people who can go back to productive working, innumerable teams who breath a collective sigh of relief that it’s all sorted out, HR staff who can move on to other matters – the collateral from a successful mediation is extensive. The number of people who now have a dispute in UK plc has gone down by over 60% from 900 to 550. Surely this is a positive outcome?
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