Mediation

by Rita Bailey

In a nutshell

1. What is mediation?

Mediation is a process for resolving contested issues. It is structured, with a beginning, a middle and an end. Each individual voluntarily agrees to attend a mediation meeting to discuss the contested issues. At this meeting, each person will represent themselves and speak for themselves. The mediation process is

  • Informal
  • Structured
  • Voluntary
  • Generative
  • Impartial and neutral
  • Confidential
  • Fast.

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2. Why mediate?

Mediation, where appropriate, offers a cost-effective method of handling many disputes, empowering managers to respond quickly, early and with confidence. It is therefore no wonder that mediation skills are becoming critical to workplace success.

  • Tribunals and other forms of litigation are expensive compared with a mediation process using line managers
  • Formal procedures take time, which impacts negatively on staff working practice and routines; staff work less efficiently and become more likely to make errors
  • When issues are not settled amicably, staff become reluctant to make decisions or take action, as they want to avoid further conflict

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3. When to mediate

Mediation is used across the public, not-for-profit and commercial sectors in a wide range of settings, including

  • Disputes concerning pay and work conditions
  • Team disputes
  • Contract disputes (with suppliers, customers and so on)
  • Business to business disputes
  • Personality clashes
  • Situations where it is important to maintain the relationship between the parties.

Mediation is not always the answer and in some circumstances an adversarial approach may be preferable. There may also be legal implications to consider.

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4. Key mediation skills

Key mediation skills, many of which are covered in separate topics, include

  • Rapport building
  • Questioning and listening skills
  • Reframing and problem solving
  • Facilitation
  • Stress management

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5. What do mediators do?

The mediator will facilitate, assisting staff members to settle their dispute by finding a way to resolve the issue themselves. They will

  • Summarise and clarify what is said
  • Encourage positive and civil interaction between individuals during the mediation process.
  • Stay impartial and treat both parties with equal respect and fairness
  • Provide a clear structure for discussion to take place and for potential solutions to occur
  • Step back when the individuals are engaging in positive manner and coming up with their own solutions or their terms of agreement

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6. Mediating between yourself and another person

Conflicts often start from relatively small issues, and it may be possible to prevent things from escalating by arranging what is, in effect, a mediation meeting between you and the other person, without a third-party mediator.

  • If continuing to work with this person remains crucial to your work and career, it is worth attempting to talk things through in an open discussion with the aim of negotiating changes.
  • A mediation meeting is voluntary and consensual, so agreeing to talk to each other is one of the first steps.
  • You will be aware of your own feelings and perceptions about the issue or situation, and you also need to accept that you may have made negative (or unfair and unjustified) judgments about the other individual.
  • Be impartial at all times, putting your own emotions and judgments aside so you can focus on the ‘greater good’ of reaching a consensual solution.

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7. Getting employees to the table

Sometimes employees may resist mediation:

  • Because it is not seen as the normal way resolving disputes
  • Because of an entrenched view that nothing can be resolved
  • Because the person feels that there will be a loss of ‘face’, of feeling ‘in the right’, or of authority and status.

To encourage individuals to come to the table you need to share clear understandable information about

  • What mediation is
  • Your role as mediator
  • The mediation process
  • The opportunity it offers.

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8. The mediation process

Mediation can be divided into five key stages:

  • Individual sessions
  • Assessment and preparation
  • Joint mediation meeting and dialogue
  • Making agreements
  • Closure

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9. Individual sessions

On a one-to-one basis, the mediator first approaches each individual involved in the dispute to talk through

  • What took place
  • What the individual’s feelings are
  • How they would like to move forward
  • Their fears, concerns and expectations
  • Whether the dispute can be helped by mediation.

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10. Assessment and preparation

The ground needs to be properly prepared before any mediation meeting.

  • Check on individual readiness to meet at a joint, mutually convenient time.
  • Consider what was discussed at the individual meetings and think through any potential issues or strategies you may use.

At the venue

  • Arrange the meeting space, tables, lighting and room temperature, plus a flip chart, if you need one
  • Ensure the room is set up to minimise any differences in status

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11. Joint mediation meeting and dialogue

At the meeting

  • Welcome people and put them at ease, but do not get too chatty or you may compromise your neutrality
  • Make the opening statement, establishing your authority, explaining the process and detailing the ground rules
  • Each individual will then have the chance to tell their story and express their feelings without challenge or interruption
  • The dialogue can now be opened up, with the mediator maintaining the structure and acting as facilitator

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12. Dealing with obstacles

As mediator, it is your role to remain calm, positive and impartial.

  • During the mediation session, many feelings will typically arise, including frustration, fear, outrage and resentment. Accusations, silence and angry outbursts can be part and parcel of the process and should be no surprise.
  • Assist each person by clarifying, reframing and summarising what is said to defuse any tension and help with the process of understanding. Make notes on the issues raised, and any solutions that are suggested.
  • As mediator, you will need to set aside your own assumptions, prejudices, and judgments about the dispute.
  • You will need to mediate without showing favour to any specific person, interests or solutions.
  • End the session if one or both parties are no longer willing to adhere to the process and ground rules.

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13. Making agreements

This stage in the process is critical to mediation as it provides each person with the opportunity to generate and assess options for moving forward beyond mediation to action that needs to be taken and/or action from which individuals should refrain to ensure future disputes don’t arise.

  • If an individual declines a suggestion, ask them to come up with a viable alternative.
  • Collect all the options or suggestions, supporting the individuals to assess them, to discard those they do not want to use and to build agreement on those they find practical.
  • Ensure that each option is given a ‘reality check’.

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14. Closure

In mediation, closure concerns summarising ideas and closing down on the issue as agreement is achieved. At this stage, individuals must always be clear about what they are agreeing to and what it involves, so an explanation regarding the options or what they agree to will always be necessary.

  • Even if an issue is partly resolved, this is also part of the agreement and you need to specify what needs to happen next; in other words, participants agree on a follow-up session.
  • Written agreements in mediation are voluntary and not legally binding.
  • Written agreements should be clear, specific and unambiguous, and outline guidance for the future.
  • A written copy should be signed by both individuals at the end of the session and photocopied for both to take a way. A copy can be kept by the mediator for future reference.

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