How Is Workplace Mediation Unique? Part 1

While visiting Tasmania recently, I gave a talk to mediators at the Resolution Institute in Hobart (and by the power of Zoom, to mediators nationally and in New Zealand) in which I discussed what I think is a very important and often overlooked subject. I explored the topic of How Workplace Mediation is Unique.

What is Workplace Mediation?

Firstly, let’s look at what we mean by workplace mediation.

Workplace mediation is mediation to help address scenarios of conflict within the workplace, and I venture to say exists both in a public and a private context:

- workplace mediation to resolve interpersonal conflict - Involves a private mediator

- workplace mediation to resolve workplace rights and entitlements – Involves a public or government commission.

The role of mediation arising out of interpersonal conflict is to deal with a relationship that has broken down. The purpose of the mediation is to try to restore the relationship.

Workplace mediation often arises out of a grievance lodged by one staff member against another. Sometimes it arises out of a bullying claim. This may be investigated by HR and found to be unsubstantiated if the allegation is more about how the staff members interact, rather than bullying per se. In this instance, mediation gives the members of staff an opportunity to restore their relationship. The mediation may help them to understand each other and their styles of working and build respect again

This type of mediation is usually conducted by a private mediator, that is not through a government body or commission. The mediation ideally ends in an agreement which is about how the parties will interact in the future. For example, how they will treat each other and how they will communicate with each other.

The second area of workplace mediation concerns workplace rights and entitlements - for example, unpaid wages, or wages not being paid in accordance with an award. These disputes are dealt with by the Fair Work Ombudsman.

Other rights-based mediations included unfair dismissal claims. Also, general protections under the Fair Work Act 2009, for example against discrimination based on gender or race. These are dealt with by the Fair Work Commission. Bullying claims can also be brought in the Fair Work Commission.

Features of workplace mediation that are unique

Secondly, let’s look at the unique features of workplace mediation.

Here, I focus on privately conducted workplace mediation to resolve interpersonal conflict. But consideration of staff member’s values and feelings as discussed here are also relevant to all mediations, including those concerning legal rights and entitlements.

I feel that there are four main features of workplace mediation that are unique. This is my own opinion and there may well be more features that other mediators identify.

In workplace mediation:

1. It is purely about a relationship, not transactional

2. It is essential to have a pre-mediation meeting

3. A third party is involved

4. The alternative to mediation is not clear

1. Workplace mediation is purely about a relationship, not transactional

Mediations about interpersonal conflict are about restoring a workplace relationship; they are not about a transaction but about a relationship. The discussions involve past behaviour and developing an agreement for the future, focussing on how the parties can move forward and have positive interactions. I do not believe any other area of mediation is purely about a relationship. Even family mediation which concerns arrangements for children, although it also includes how parents will interact with each other in the future, is first and foremost about a transaction.

Again, this is my personal opinion on this subject, and other mediators may have a different perspective.

2. The pre mediation meeting is essential

Because of the focus on interpersonal relationships, it is important for the mediator to draw out from the parties their feelings and values. This means that an intake session or a pre mediation meeting is essential. Typically, I conduct a pre mediation meeting over an hour and a half to unpack the participant’s concerns and feelings, and I also get a sense of their values. A common finding is that people want to feel appreciated for their contribution at work and for their knowledge and work skills to be acknowledged.

The purpose of the pre meeting is to prepare the party for mediation. It helps them think through what their concerns are and to articulate these. This in turn helps them to summarise their point of view more easily and with more clarity on the day of the mediation itself.

Another purpose of the pre mediation meeting is to screen for suitability. An assessment needs be made from a mental health perspective, as to whether the parties are each well enough to participate. Usually the parties are extremely stressed, so the mediator needs to feel sure that they will be able to handle themselves in the mediation, without the process causing them harm. The pre mediation session also gives the mediator the opportunity to assess whether the mediation is likely to be productive. This means, whether the parties are sufficiently motivated to work towards an agreement.

In family mediation, a pre mediation meeting is also essential. This process finds out from the parties if they are psychologically well enough to participate. Also, it explores if there are issues of family violence that would make the mediation unsuitable. The screening for these things is laid down by the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

Apart from workplace and family mediation, I would venture to say that not many other areas of mediation require a pre mediation meeting of the type where the mediator explores the party’s feelings and capacity to attend.

3. The third party

In workplace mediation, we need to deal with the referring organisation (the third party if you will). We are briefed by the referring manager, usually the HR manager. Although we our retained by the organisation, our real stake-holders are the parties taking part in mediation. We must consider what is best for the parties. This means, only proceeding if the matter is suitable. Also, ensuring that the parties are aware that mediation is a voluntary process and that they don’t feel that the organisation has given them no choice but to participate.

We must stick within our role as mediator and follow our mediator ethics; we must recognise where an organisation wants something different to what we can provide in our role and therefore avoid stepping outside our role.

4. The alternative to mediation is not clear

In some areas of mediation, for example mediation of litigated disputes, it is clear that will happen if the mediation does not take place or the matter does not resolve at mediation: the matter will go all the way to hearing. A judge will make a decision.

In workplace mediation, there is no such back stop and as such, it isn’t automatically clear what would happen if the mediation does not take place, or if it does take place and the matter isn’t resolved. Sometimes I ask HR at my first conversation with them, what would happen in this situation? Some of them have answers, some of them would prefer to wait until the possibility of resolution is explored, and if mediation doesn’t work, consider this question then.

The point is, that the parties don’t know what will happen next. This means that they may be unmotivated to participate in mediation, as they feel they can maintain the status quo if mediation doesn’t occur. In this situation, a colleague suggested to me that we could indicate to the parties that the alternative is their manager/HR manager will decide on their behalf what happens next if they fail to resolve issues through mediation. The parties hopefully then see mediation as an empowering process and an opportunity to resolve the matter themselves rather than the matter escalating to a manager.

Stay tuned for the rest of my comments on this topic. In parts 2 and 3, I will be commenting on:

- My approach to conducting a workplace mediation

- Challenges in workplace mediation

- What we can learn from workplace mediation that is helpful for other areas of mediation.

If you would like to learn more about workplace mediation and mediation skills, take a look at the next workshop I am running, How to Run a Workplace Mediation.

Elizabeth Rosa is a Nationally Accredited Mediator, a Trainer and the Principal of Resolve at Work.