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<xTITLE>Mediation -The Best Way To Work It Out</xTITLE>

Mediation -The Best Way To Work It Out

by Carol V. Bloom
October 2002 Carol V. Bloom
Why are so many businesses still dragging their heals about using mediation to resolve workplace disputes? CEO's, Human Resource Directors, Managers and Business Owners all know that ignoring workplace conflicts can only keep matters at bay for so long; when the dam breaks, union grievances, animosities within and across teams, and expensive lawsuits result. For decades now, and especially in the past ten years, mediation has been used successfully in small, medium and large companies nationwide to resolve a wide array of disputes at very little cost to the business. So why aren't more companies either contracting with outside mediators or implementing their own internal programs? The answer is a combination of both simple and complex factors:

  • People are generally resistant to taking preventative and/or early intervention measures, even though we know that they will save us money and spare us pain in the long-run. How many years did it take Americans to be convinced that regular visits to the dental hygienist would pay off over time? …

  • Our highly litigious society affects decision making at every level of a business and at every turning point in a conflict. Most of us believe that it is to our advantage in a dispute to have someone advocate on our behalf, argue the merits of our case in terms of "objective" legal interpretations, and render judgements which become the resolution or settlement of our dispute. It is rare to find disputants who are eager and confident about resolving their own conflicts through a non-adversarial process. In order to see mediation as a viable option, individuals, groups, and businesses in general must shift their belief systems concerning the ways in which fair and/or just outcomes are determined. Mediation is based on the premise and on the value system which says that parties to a dispute are the ones most capable of resolving that dispute, and that the parties themselves should play the central role in any efforts to work through their own conflicts.

  • To choose mediation, either as parties to a dispute or as a manager or employer with an awareness of the costly effects of a workplace conflict on morale and productivity, is to act against our natural impulses to avoid conflict. Most of us have an aversion to confronting conflicts head on; we hope it will just blow over, we don't want to make waves or be seen as a trouble-maker, and we almost always characterize the other person as the "difficult one", the "know-it-all", the "insensitive brute", the "tyrant", "the control freak", etc.

  • Finally, business people often hold the misconception that a mediator should be knowledgeable about or even an expert in the content of the dispute. This leads to a paradoxical situation wherein the services of an outside mediator may not be sought because that person does not have expertise in the field, while an inside mediator is seen as inappropriate because he or she is either too close to the parties (in the same company, department, etc.) or is a competitor who cannot be or is not perceived as neutral. This myth about the need for a content-expert-mediator is easily dispelled when one understands that it is not the mediator's role or responsibility to make any suggestions about or determinations concerning the content of a dispute. In fact, it is often quite helpful in preserving neutrality and in assisting parties to reach their own agreements and/or settlements, if a mediator has no specific knowledge about the content of a dispute. And it has been demonstrated time and again, in every area of employment disputes, that the more ownership participants have in crafting their resolutions, the more durable the settlements will be.

According to the Justice Department, employment discrimination cases nearly tripled between the beginning and the end of the 1990's. These cases involve claims of sexual harassment, racial bias, hostile work environment, wrongful termination, ADA violations, etc., etc. And yet, as the U.S. Postal Service discovered in the first 22 months of full operation of its "Redress" mediation program, from September 1998 through June 2000, 17,645 disputes were mediated and of those, 80 percent were resolved. During the same period, formal complaints dropped 30 percent and lawyers estimated that the program saved the agency millions of dollars. Ms. Cynthia J. Hallberlin, former chief counsel for the Postal Service stated: “We have found that companies are very interested in transformative mediation…because of its promise to not just solve the problem at hand, but to help the parties communicate more effectively in the future.” [NYTimes - business section, Sept. 6, 2000]

Transformative Mediation describes a particular orientation practiced by mediators who believe that small steps count in improving communication between parties, particularly when they will continue working together in some fashion. Mediators using the transformative approach are trained to work with parties toward resolutions which encompass the issues which are important to the disputants themselves, and in the process, to help strengthen their relationship so that it can withstand conflicts or differences in the future. The Postal Service chose to contract exclusively with mediators trained in the transformative approach, believing that, over time, these mediations would contribute to improving the overall workplace culture of the Postal Service.

While the Postal Service, the largest single employer in the U.S., developed a nationwide program using outside, contract mediators, many other large companies and organizations have created internal dispute resolution programs. A survey of Fortune 1,000 companies by the Cornell Institute on Conflict Resolution found that the majority have developed some form of what is known as ADR, (alternative dispute resolution) to avoid litigation.

Texaco's settlement of a multimillion-dollar racial discrimination case included the creation of an Ombuds Program in February 1998; which later became part of a company-wide problem-resolution system, along with other mediation and arbitration programs. There are at least 22 workplace ombuds offices in 10 different federal agencies in the U.S. Federal ombuds offices deal with a wide range of workplace issues, including providing third party assistance (mediators) to resolve disputes between individuals as well as within work groups.

Smaller businesses have also discovered how cost effective mediation can be in resolving disputes which interfere with productivity or negatively effect employee morale. Even "mom & pop" type businesses have used mediation processes to keep owner-partnerships from dissolving, to help retain valued managers and to implement change and modernize systems without loosing the "heart" of their businesses due to employee conflicts.

The advantages for businesses in adopting mediation processes, either through outside contracts or internal programs, are multifaceted and immeasurable. The problem remains: how to dispel the myths, support attitudinal changes, and generally promote more openness among business people to using mediation services and implementing mediation programs.

Biography


Carol Bloom is a professional mediator, facilitator and trainer working nationally and internationally for over fifteen years. Carol specializes in workplace mediation, team development and organizational communication and change facilitation. Carol uses the Transformative Mediation model, focusing on assisting and supporting clients to improve their communication and work through conflicts more productively.

Carol has been a contract mediator for the United States Postal Service since 1998 and has mediated throughout the past decade for many Federal Governmental Agencies. Carol provides mediation, facilitation, team development, training, and conflict coaching services to California counties and municipalities. In the private sector, Carol provides these same services to commercial and nonprofit organizations, businesses, and schools throughout California, primarily in the Bay Area, including a current, ongoing relocation contract with the Exploratorium museum of science, art, and human perception. For over a decade, Carol has trained and coached professional mediators practicing in all sectors (workplace, family, healthcare, government, etc.) in the Netherlands, once or twice each year, teaching the Transformative Mediation model. She speaks Dutch fluently and recently co-authored the book Reflections: the practice of Transformative Mediation, published as part of the Netherlands Mediation Institute’s educational book series in September, 2012. Carol has also worked in the field of inter and intra ethnic conflict communication with Balkan Roma (Gypsies) in Kosovo, Macedonia, and Serbia and refugee populations living in Italy and Germany.



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