Interest in using mediation to resolve conflict at work continues to grow as HR professionals and business managers face the challenges of keeping staff motivated (if not happy) as well as satisfying shareholders desire for profits or growth.
Human Law Mediation is encouraged to see such interest but also concerned. Concerned that for those inexperienced in mediation mistakes could be made unless some of the finer details of mediation are understood.
I’ve written before (Mediation, not for the uninitiated) about the different skill sets required by mediators and lawyers when handling disputes and conflict but here I want to focus on two distinct forms of mediation – with some pointers on in what circumstances each should be used.
Mediation Before It Goes Legal
This form of mediation is used before the lawyers have got involved in the dispute and typically when there is still a prospect of the dispute being resolved and the working relationship continuing.
In this instance the role of the mediator crosses over with coaching and is seeking to get the disputing parties together so that the working relationship can be renewed. Essentially the mediator is steering things so that the working relationship does not completely break down and there is no need to instruct lawyers.
The role of the human resources officer is detached. They should not take sides.
The role of the mediator is quite subtle but potentially very creative, as the list of solutions on the table is massive.
The appeal for the organisation is that generally most solutions are non monetary which can result in significant savings on both legal fees and the costs of a pay out.
It also enables solutions to appear which can have a greater long term impact on the organisation and can lead to real changes in the working culture if the recommendations of the mediator are followed.
The benefit for the employee is that a solution can be found without them being forced to go through the stress of the grievance process and then ultimately to Employment Tribunal.
Jobs can be saved.
In my experience pre-legal mediation tends to present more long term solutions for an organisation than post-legal, with the mediator becoming a facilitator of long term change.
Although a more potentially appealing option than post-legal mediation it is used less often than you would expect.
Consider these questions to decide whether your dispute or workplace conflict could be handled in this way:
Is there any prospect that the working relationship can be saved?
Do you want both the disputing employees to stay?
Is there a financial reason to keep both the disputing employees working?
Are the employees willing to try a proven method of successfully resolving disputes?
Do wish you to avoid the prospect of expensive legal fees and having to search for a replacement?
Post-legal Mediation
This form of mediation is typically used when the relationship really does appear broken and the lawyers have got involved and maybe Employment Tribunal proceedings have been commenced.
From the mediator’s point of view the role is focused more often than not on deal making and agreeing financial settlements but also on the other potential solutions involved.
The role of the Human Resources professional is more biased and focused on reaching a solution for their organisation.
The key difference is that it is unlikely the parties will work together again and the role of the mediator is focused on negotiation and searching for solutions which enable the parties to walk away without incurring more legal fees and stress.
With the growth in the use of Judicial Mediation and mediation bound to increase mediation skills will rise in importance. Mediation is being promoted within Employment Tribunals and there is greater awareness of mediation particularly amongst human resource professionals.
You will not have the disputing parties being friends at the end as such but you do have the opportunity for both parties to avoid a lengthy process and maybe get an understanding of why the problems started and lessons to be learnt.
You will need to use post-legal mediation in the following circumstances:
Any employment dispute where there is a genuine willingness to settle and the costs in dispute are high enough to justify it.
Complex cases with at least two days projected for Tribunal hearing
Disputes where legal issues are not fundamentally in dispute
Cases where parties are afraid of going to Court and fear cross examination
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