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Mediation and How to Get it Right with Your Employees

Mediation and How to Get it Right with Your Employees

Date: 13th January 2021 | By: Claire Malley | Categories: Disciplinary, Employment law, HR

mediationIn everyday life people fall out, clash from time to time or just simply don’t get along so it’s no wonder that employers often experience this with their employees. Sometimes there doesn’t seem like a solution to the problem; if neither party is to blame as such, there’s no element of bullying etc. then what can you do to get rid of this conflict between those that you need to work together? Mediation is one very viable option.

What is Mediation?

Mediation is an informal approach to resolving conflict in the workplace. It’s a common outcome of some grievances where the issues are quite trivial or can be resolved quite amicably without the need for formal processes. It might be worth considering offering mediation at the outset if it looks as though this would likely be the outcome of any formal grievance anyway. It’s where the arguing parties (usually two but it can involve more!) meet in a private setting in or out of the workplace to resolve their issues between them and move towards a better working relationship.

When is Mediation not Suitable?

  • For more serious grievances or complaints where it seems that one party is at fault, particularly if any bullying is identified. In this case an investigation and potential disciplinary action would be more appropriate.
  • For personal issues – you can’t really get involved in helping people solve their outside of work issues such as a marriage breakdown. Focus only on how it affects their work life. If they veer off into personal issues; this is not something workplace mediation can resolve.

Implementing Mediation

  • 1. Identify where it is necessary first of all and that no other more severe action is more appropriate
  • 2. Ensure all parties agree. You can’t force employees to partake in mediation
  • 3. No need to send out formal invites – an informal email or calendar invite etc. will suffice
  • 4. Appoint a mediator. You can appoint an external third party; either an experienced mediator or even just someone you trust or you can appoint someone internal
  • 5. Have a “pre-meeting” separately with each party
  • 6. Hold the group mediation meeting
  • 7. Ask the parties to make some “resolutions” for how to work better together moving forward
  • 8. Consider whether it’s necessary to plan a future mediation session – has enough been covered in this session? Could the parties benefit from another session either in the near or distant future?
  • 9. Remind the parties that anything discussed is completely confidential
  • 10. A follow up written report isn’t mandatory but it is advisable so that the parties can reflect.

Role of the Mediator

A mediator absolutely has to be someone who can act impartially. They should not give their opinion on the matter. They are simply there to help the flow of the meeting, help the parties open up about their issues and steps in now and then to calm the meeting down, offer a break, reiterate points made if necessary, ask the parties to move the conversation in a certain direction (i.e. towards a solution if things are just being repeated). The mediator does not come to a final decision; the parties in conflict do. Things a mediator might say;

  • “So who would like to begin?”
  • “Matthew, you say you mean no malice when you tease Anita about her choice of sandwiches for lunch but Anita says something similar happens every day and she feels embarrassed when this is done in front of the rest of the team. Can you understand that she feels this way even though you’re not intending to make her feel this way?”
  • “Okay, we’ve discussed this point for quite a while now. Let me summarise; X has said this and Y has said that, so how do you both think we can resolve this particular issue moving forward?”
  • “Karen, you have very honestly and openly discussed your current personal situation with us and now Ahmed is aware of why you may have snapped at him some mornings which has led him to then be hostile towards you for the rest of the day. How can we work towards ensuring this doesn’t happen, or if it does, how can we defuse it so that the conflict doesn’t last all day or become worse and worse?”
  • “Give us an example of why you feel that way – any particular incident you are referring to?”
  • “And how did that make you feel? How do you feel X was feeling in that same moment?”

Individual Pre-meetings

It’s a good idea to meet with each party individually before the full mediation meeting because it gives each party a chance to feel more comfortable, ask any questions about the process and it’s a good opportunity for you to encourage them to open up and reassure them about the confidentiality and benefits of the process.

The Mediation Meeting

The mediator should welcome both parties, remind them of confidentiality, remind them of respecting each other throughout and that the purpose is to work towards some shared agreements on how to resolve matters moving forward. The mediator should take notes and encourage the parties to speak to each other and not directly to the mediator. The mediator should advise them that they are there to listen and it’s for the parties to do the talking but they will intervene when appropriate to move things in the right direction. Encourage the parties to begin and talk through one issue at a time. Try not to make too much eye contact with the parties to discourage them from talking to you instead of the other party to the mediation.

Resolutions?

Examples of some common resolutions the parties may come to;

  • To be civil with one another – say Hello in the morning.
  • Ignore each other. If they don’t need to interact for work purposes and they can’t resolve their issues, sometimes this is the only resolve but at least it helps calm any conflict.
  • Karen will acknowledge if she is feeling stressed one day and let Ahmed know she may be a little distant today, try not to take things out on him, or apologise if she does snap at him. Ahmed will try to not take things personally and consider if there are other things going on that have made Karen react in a certain way.
  • When X needs to talk to Y (their manager), they should appreciate their manager may be a little busy so may not be able to help right there and then. X will either ask when would be a good time or send a calendar invite. Y will commit to ensuring they make time for X and particularly with anything urgent, prioritise as necessary .
  • When Thomas walks into the break out area, the other guys will be aware he feels slightly nervous and offer interaction to help him feel more involved and not left out. Thomas will appreciate that sometimes the others may not see him and make the effort himself to walk over and get involved from time to time.

When Mediation Doesn’t Work

Mediation won’t always work. The take away benefit from trying it anyway is so that you as an employer can show you offered mediation or trialed it. If it doesn’t work, that’s outside of your control. The employees are adults and as such, at the end of the process, whether it worked or not, they should be reminded to act as such. They need to take responsibility as well. Ultimately if they don’t like someone or they have a clash of personalities, they need to put their personal feelings aside (unless there is clear bullying, harassment etc.) and remain professional. We won’t always get on with everyone we work with; that’s life. Remind them of this and then moving forward; investigate any future occurrences as and when they arise. Sometimes you may have to discipline them both if they can’t act like adults and if mediation has failed.

Don’t struggle with mediation on your own. Get in touch with our Employment Law team today for legal advice and support you can trust.

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