Originally published in The Daily Journal, California Law Business, Corporate Counsel
Supplement, on 11/9/98. Republished with permission.
Commencing mediation before employment relationships are terminated and lawsuits are filed can turn adversaries into collaborators. Staff trained to handle this kind of dispute resolution should be part of every employer’s tool kit.
Mediating workplace disputes as they arise, before positions have hardened and while numerous possibilities for creative solutions still exist can be a great benefit to corporations. Employment mediation is common now, but most cases do not get to a mediator until after the relationship has been terminated and a lawsuit has been filed.
By then, there usually are few meaningful options besides payment of money damages. Even with these limited options, both parties generally find mediation preferable to litigation because it is faster, less costly and private. But this does not even begin to take advantage of mediation’s potential for the workplace. As employers are realizing, mediation can turn conflict into an occasion for generating positive change in workplace relationships, increasing productivity and creativity, and shifting employees’ views of themselves from victims locked into adversarial relationships with management to responsible, powerful participants in the company’s goals.
Consider the following situations:
Left to their own devices, none of these groups are likely to achieve a resolution that satisfies everyone. They are already doing the best they can and that’s what got them into their predicaments.
Intervention by someone from senior management or human resources who is oriented toward determining “what’s wrong” and “who’s to blame” is unlikely to help much. Even if it is determined that there is enough blame to go around, a faultfinding process will generate more defensiveness and denial than understanding or consensus.
Early intervention by a mediator can turn these problem situations around, helping the parties not only to mend but also to strengthen their relationships and to create other positive changes. This can be accomplished whether or not the issue is framed as a legal problem.
In any mediation, the ultimate goal is for the parties to arrive at an agreement that they can willingly enter. In the workplace, this generally means an agreement about how they will structure their relationship and how they will act toward each other in the future. To achieve this, it is helpful to set an interim goal of mutual understanding. Each party understands not only her own but also the other party’s point of view – and believes that the other party understands her point of view. Parties who arrive at this point are more willing and able to create solutions for mutual gain and satisfaction.
The first step in bringing this about is for the mediator to understand each party’s view of the situation and to find out whether the parties truly wish to change it. The mediator will ask the parties to consider and respond to questions like, “What do you see going on right now that is a problem for you?” “How would you like the situation to change?” “What do you think will be needed from the other party to make that happen?” “What do you think will be needed from you to make that happen?” “What changes do you think the other party would like to see in this situation?
It is important that the mediator listen with a motivation to really understand each party’s view, and with no agenda to persuade either party to change his mind. And the mediator genuinely wants to know: Do these parties want to change their dynamic? Do they want change enough that they will be willing to do the work involved in a change process? No matter how much the parties differ about what’s happening and what needs to change, success is likely if they are willing to commit to make some change.
Once the parties commit to change, resolution comes through a mutual learning process. Each party educates the other about his perspective on the situation. Each will speak about what he recalls happening, how he interpreted events, what his motivations were and what motivations he ascribed to the other party. It is common for parties to remember events differently; it is almost universal that parties interpret events differently. And a party may be quite surprised to learn that the other party ascribed motivations to her that are quite different from what she believed her motivations to be. This may, in turn, make her more receptive to hearing that the other party’s motivations were different from those she ascribed to him.
When people engage in this process, they cannot help but appreciate that they are both fallible, doing their best in the situation, and unable to understand each other because of failures in communication. They are likely to begin feeling some compassion for each other and may even choose to forgive past difficulties. The process of coming to this point can be extremely moving. From there the parties can resolve almost any issue, often in surprising ways.
Many situations like those listed above come to this level of resolution. In every one of these situations, each of the parties initially said something like, “I’m willing to make changes, but I don’t think the other party is. I don’t really believe the other party is acting in good faith.” Through the mediation process, they learned otherwise.
Obviously, success depends on the skill of the mediator. The mediator must be someone who can connect with the parties in such a way that they will be willing to talk to her about their wishes, feelings and fears. She must, by the quality of her presence and demeanor, instill confidence in her ability to manage the process, so that the parties know they can say what’s true for them without fear that the discussion will degenerate into finger-pointing and name-calling. She must be relentless about staying neutral, siding with neither party, advocating for no particular outcome, believing that neither party is wrong and that fault need not be assessed in order to reach resolution.
The mediator must have exquisite communication skills, being able to listen to a party’s judgmental, accusatory or inflammatory statements and to mine from them information about the speaking party’s own experience, beliefs and feelings. And she must be steadfast in her belief that if one travels into the heart of conflict, one can emerge better than at the outset. None of these qualifications are innate; all are skills that can be learned with good training and lots of experience.
The mediator may be a fellow employee. A number of employers have established teams of internal mediators to work with the conflicts that arise in their organizations, providing ongoing training and support as the mediators develop their skills. Most of these internal mediators come from human resource departments. Human resource professionals are often “naturals” for the work of mediation.
Employers could extend the opportunity to serve as a mediator beyond the human resource department. A long-term employee who has earned a reputation for fairness, trustworthiness and sagacity may be the best mediator for the situation.
There are situations, however, in which a fellow employee would have difficulty being neutral or being perceived as neutral. For example, the dispute may be one in which senior managers are involved, or one involving issues that have polarized the workplace. And some employers lack the resources to provide training, support and time away from other duties for an employee to serve as a mediator. In these situations, a professional mediator may be called upon.
When selecting an outside mediator, the employer should look for someone who is comfortable and experienced in bringing parties together to discuss their differences, and who does not rely entirely on “shuttle diplomacy,” i.e., keeping the parties separated and shuttling back and forth between private meetings. It is difficult to repair and improve a relationship if the parties do not at some point relate to each other directly.
Internal workplace mediation can be used by the employer in a variety of ways. The employer may implement a comprehensive internal dispute-resolution process, developed by a team that includes managers and employees, and designed specifically to suit the organization’s needs and corporate culture.
This sort of program generally enjoys excellent acceptance within the workplace, since it is developed from the ground up, through a process that includes taking stock of the types of disputes that tend to arise in the particular workplace, the methods historically and currently employed to resolve those disputes and an assessment of employees’, and managers’ satisfaction with those dispute resolution methods.
When the team has identified what is and is not working in the organization’s current approach to conflict, it then reviews best practices for conflict resolution in the industry and comes up with a plan that it believes will work. These programs almost always include a mediation component, and they frequently include organization-wide training in conflict and communication skills.
Of course, an organization may take advantage of internal workplace mediation even if it does not have the resources to commit to such a process. Corporate legal and human resource departments can simply keep mediation in their conflict-resolution tool kits, offering it on a case-by-case basis when they believe it will benefit the organization and the disputing employees. Where mediation is used in this ad hoc manner, there are a few points the employer should bear in mind in order to ensure success.
First, mediation should be presented as a voluntary option. Mediation only works when people engage in it willingly, since the point of the process is to arrive at an agreement. This means that when mediation is suggested to disputing employees, care should be taken to explain what mediation is, how it works and what other options exist for the employees if they decline to engage in mediation.
It is usually helpful to encourage the employees to talk with the mediator at this stage. This will give the employees an opportunity to ask the mediator questions about the process and to sense whether they feel comfortable with the mediator and her neutrality. It will give the mediator an opportunity to set the stage for successful resolution by engaging the employees in a conversation about the benefits they might derive from mediating their dispute. When the employees believe mediation has something to offer them and enter into it willingly, they are already halfway to resolution.
Second, the employer must take steps to ensure confidentiality. Employees are unlikely to engage in meaningful dialogue if they fear that their statements will be reported to upper management or disseminated via the office rumor mill. Upper management can help assuage these fears by agreeing not to request reports on what’s happening in the mediation.
When management will be receiving any kind of report (other than a report of the final agreement), the employees should know and agree to those terms before commencing the mediation. The mediator should explain confidentiality to the employees before beginning and, especially where he is a fellow employee, the mediator should maintain confidentiality himself.
Finally, there should be ground rules about how the mediating employees themselves will maintain the confidentiality of the process. If one party discloses facts about the mediation to uninvolved co-workers, the other party’s trust can be undermined. Some employers address this potential problem by establishing a blanket rule against discussion of the mediation with anyone outside the mediation. It works well to make this question part of the mediation, with the mediator helping the employees reach agreement about whether and with whom they will discuss the mediation. Beginning the mediation with an agreement about confidentiality can be a positive first step.
Forward-thinking employers are using mediation as one tool for creating a more productive, collaborative workplace. Mediation should be considered not only in cases where the potential for legal exposure and expense are evident, but also in any case where a successful working relationship is threatened by conflict, and in any case where the disputants are willing to work together to resolve their differences. By creative use of mediation, the employer can turn workplace conflict to the advantage of the whole organization as well as that of the disputing employees.
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