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Mediation in the Workplace – A Proactive Approach to Preventing Litigation and Promoting a Healthier Work Environment

Mediation brings people together to proactively resolve their disputes. 

Mediation is a confidential, usually voluntary, process of shared decision making in which one or more impartial persons, called mediators, assist people, organizations and communities in conflict to work toward a variety of goals.

Mediation is a way to resolve disputes without filing a “formal complaint” or lawsuit. It can provide a non-public forum in which the disputing parties can discuss the dispute, feel that they are being heard, gain insight and understanding into the perspective of the other party, and work together in exploring and developing possible ways towards resolving the dispute.

Why Mediation In The Workplace:2

  • Recognition and Understanding. When employees feel they are being heard and have the opportunity to hear and understand the other party’s point of view, the chance for an amicable resolution is heightened. 
  • Self-Empowerment. The workplace is an environment in which employees feel they are normally being told what to do – mediation offers employees the opportunity to have input in the decision on how to resolve a situation. 
  • Timeliness and Speed. Mediation can take place quickly and within a short period of time (often just a few hours). In contrast, a formal complaint filed with a regulatory agency or court can take years to resolve. 
  • Cost Effective. Mediation is cost effective not only financially but also in human capital and time. Mediator fees are a fraction of the costs of the legal fees associated with a protracted conflict and litigation. 
  • Confidential. Once a lawsuit is filed it becomes a matter of public record while mediations, by their very nature and contract, are confidential, regardless if a mediation takes place prior to or after a lawsuit has been filed. In California, communications during mediation are inadmissible and are confidential as defined under the Evidence Code.
  • Durability of the Mediation Agreement. Studies have shown that when disputing parties voluntarily enter into a mediation agreement they are far more likely to adhere to the terms of the mediation agreement since they helped draft and design the agreement rather than when a judgment is imposed by a court or regulatory agency.

The Steps in Mediation Process:

  1. Opening Statements: During the opening statement part of the process, the mediator explains the role of the mediator and what the rest of the process will look like. The mediator affirms that mediation is a voluntary, confidential, and neutral process, defines and obtains agreement that the parties will follow certain ground rules during the mediation (e.g., no interrupting or name calling, the need for all parties to listen to each other and take notes, etc.), and reduces the ground rules into a written “Agreement to Mediate”. The mediator also explains what a “caucus” is and when and how a caucus might be utilized in furthering the mediation process. (see full definition of Caucus in paragraph 5 below). During the opening statement and throughout the mediation process, the mediator affirms that the mediation is the parties’ process and that they will be designing the resolution. The mediator explains that the role of the mediator is to help the parties identify their problems and that the mediator does not represent either party (or the company) and will not impose a decision; rather, the mediator’s role is to help the parties formulate their own resolution of the dispute.3 One of the most important tenets of mediation is confidentiality, and the mediator will explain that “what happens in mediation stays in mediation” and cannot be used outside of the mediation process; in fact, most mediators require parties to sign a confidentiality agreement prior to the start of the mediation. Mediators usually destroy their mediation notes at the conclusion of the mediation. 
  2. Identifying the Problem. The mediator and the parties will agree upon who will speak first (usually the complaining party). Each party will be given the opportunity to explain the nature of the dispute and how the dispute has affected them. Hearing the other party’s point of view can be difficult, but it is essential and a powerful way for one party to see how the other party views and has been impacted by the dispute. 
  3. Identifying the Issues and Agenda Setting. The mediator’s role is to help the parties identify the issues and the core problems surrounding the dispute; frame the issues and gain consensus on what the parties want and need to solve; and help set the agenda for the mediation. The parties together draft the agenda, which creates an anchor for the mediation and helps focus the parties on the issues that are important to resolving the dispute. 
  4. Finding Solutions. Step by step, the parties work through the agenda items and brainstorm solutions. Throughout this process the parties work to define what each party would like the other party to do (or not do) differently in the future. 
  5. Caucus (Optional). Caucus is a confidential, individual break-out session between the mediator and one of the parties. Caucusing can provide the opportunity for a party to share things they are not ready to or able to share with the other party. Caucuses are also a time when the mediator can build rapport with a party, discuss how the party feels the mediation is going, identify questions they would like answered by the other party, share concerns and ideas regarding the mediation, and discuss settlement offers. All matters discussed in a caucus are confidential unless the parties agree that the information can be revealed to the other party. 
  6. The Agreement. The Agreement should be written down, in plain English rather than legalese. It will detail the facts and objectives including the nature of the dispute. The Agreement will detail each point negotiated, and the promise or condition related to that point. It should be fair, balanced, and reviewed by each party before it is finalized and signed by the parties.4

Types of Workplace Issues Where Mediation Can Really Help:5

  • Problems between employees. Even the simplest of problems between employees, if left unresolved, can fester and grow into much larger issues that not only negatively affect the employees involved but also impact others around them. Employers that provide mediation as an avenue that employees can use to resolve their disputes in a confidential, impartial and nonjudgmental way serves to empower employees to positively change their workplace interactions. 
  • Performance Issues. Employee performance can deteriorate for an array of reasons: communication style, personal interactions, misperceptions and misunderstanding regarding roles and responsibilities, etc. Mediation can offer an alternative, and likely more productive, forum in which to discuss these difficult issues outside of the standard performance review process. 
  • Harassment Complaints. Utilizing mediation as the first step in dealing with harassment complaints can be very helpful, especially if the complaint is based on a misperception or misunderstanding of what is acceptable workplace behavior. Mediation can serve to open communication between the parties, help clarify what is acceptable workplace behavior, and foster a healthier understanding between co-workers. 
  • Termination. A termination is always a difficult situation for the employee in question, the employer, and often other employees. Mediation can help the employee feel they have fully shared their feelings and concerns regarding the termination in a circumstance in which the power lies ultimately with the employer. Mediation can offer an opportunity for a “peaceful parting” and allay employers’ worries of potential litigation.

Why Employers should consider adding mediation to their Employee Relations tool kit.

At a minimum, the benefit of using mediation as a first step in addressing and resolving workplace disputes gives each party a better understanding of the issues and problems of the dispute in a confidential, impartial, and non-public venue. Mediation offers the parties the opportunity to resolve the dispute quickly, and it empowers each party by providing them a voice and role in determining the resolution. Even if the mediation does not result in an agreement and a lawsuit ensues the parties will have a good understanding of the nature of the dispute and the facts surrounding it.

Mediations that do lead to an agreement have endless benefits that include a positive resolution to a workplace dispute in a quick, cost effective manner. Mediation also has the long lasting effect of providing the employees who participate in the mediation the conflict resolution tools that were utilized in the mediation to resolve future disputes.

At its core mediation is a confidential and voluntary process in which the parties have an active role in the control and resolution of the dispute. When an agreement is finalized, it allows the parties to move forward with a sense of completion, of ownership in the outcome, and, most importantly, that they are winners at resolving their problems.This is an especially meaningful experience in the workplace since employees often feel that they do not hold a significant amount of power.

Who is an effective workplace mediator?

The most effective workplace mediator is a certified mediator who completed mediation training through a recognized mediation training program. Certified mediators are trained in the essential skills of impartiality and neutrality, and have a thorough understanding of the mediation process.

Options include choosing someone internally who is (or is willing to become) a certified mediator or seeking an expert externally.

1 Dispute Resolution Center, St. Paul MN, Brochure 

2 Why Mediation by Lawrence a. Heurta (Originally published in the Nov./Dec. ’98 issue of Right of Way) 

3 Your Rights in the Workplace (9th Edition) 

4 Your Rights in the Work Place (9th Edition 

5 Los Angeles Bar Association Dispute Resolution Services, (DRS) 

6 Mediation: A Process To Regain Control of Your Life by Nathan Davidovich