Conflict is a rift or imbalance created between two individuals or between a group of individuals in the way of approach, thought or work. This imbalance may be due to social or personal behavioral change. If physical or psychological damage is caused to any person or group then the issue turns into conflict. Mediation is a problem-solving technique with the help of a neutral third party called mediator. He navigates into the conflict without any capacity to make a binding agreement. The mediator assists the parties to have effective communication in a structured manner, improve their working relationship, identify their needs and interests, thereby explore the issues and finally help the parties to come out with a voluntary agreement.
Mediation started its travel into the field of Employment and Organisations for the first time in the US and then it cropped into the UK. In my opinion workplace, Mediation is the best way to resolve disputes in an Organization with cost-effective and also no delay. Delay in litigating the matter before the Employment Tribunal may escalate the issue and will not be the best way to maintain an ongoing relationship and also the time spent fighting for the rights before the Tribunal will be a waste.
Workplace mediation can be best used to solve the conflict between employees and manager, the conflict between employee and another employee, sexual harassment, discrimination, workplace bullying and communication difficulties.
When Mediation is appropriate:
Mediation in workplaces seems appropriate to maintain an ongoing relationship between the conflicting parties in an Organisation. It can be used to solve many issues relating to workplace disputes. The confidentiality aspect of Mediation maintains the integrity and dignity of the disputing parties. It is more successful if the disputing employees or the employee and the employer together show interest to resolve the dispute between them. Mediation in cases of workplace conflicts is appropriate in the early stages of the grievance, this avoids the escalation of the dispute and also prevents the employees from being subjected to any sort of formal or disciplinary proceedings.
Mediation paves way for the parties who have a difference of opinions to sit and open up their feelings. This is a place where the discussion will be based on a practical solution for the differences between the parties rather than discussing the blames. Mediation will be the best route to solve a dispute as it is flexible in nature. Mediation doesn't have any stringent rules or procedures to follow, is based on the interests and feelings of the parties. Whereas courts are strict and courts go by the Law, the procedure, the code, and the precedents. In most of the cases, court decisions may fail to maintain the ongoing relationship in the workplace. In practice, Mediation in the workplace is considered as an additional option for dispute management.
Some of the issues that can be best sorted out in workplace mediation are:
- The dispute between an employee and another employee
- Complaints relating to the behavior of a Manager to his subordinate
- Issues relating to an employee's performance or conduct
- Disputes between an employee and a customer or an external organization.
- Personality Clash.
When mediation not appropriate:
Mediation cannot be found appropriate in all cases, particularly in workplace issues. Circumstances, where mediation turns to be inappropriate, are as follows:
- When one party blames or victimizes the other;
- The party against whom there is a serious allegation about the use of drugs or alcohol;
- In cases where the relationship between the conflicting parties cannot be healed.
- When there is an allegation of serious misconduct and the same could be dealt by way of a formal process;
- Both the parties subjected to mediation should be willing to mediate (the concept of Voluntariness);
- Sexual harassment mediation is not successful. In sexual harassment cases, people normally have the involvement of power, coercion, undue influence, fear of bias.
- Either of the party is vulnerable;
- Allegations of criminal activity and
- If the mediator feels that it is unsafe to proceed with mediation, the mediator can call off the mediation.
Is Mediation confined to two individuals:
In my opinion, workplace dispute is more than a dispute between two individuals. It is a dispute between two powerful persons. To illustrate, the dispute is between a Line Manager and an Employee, the Line Manager will be powerful due to his position and the Employee will be powerful being an experienced person. The conflict, between the two equal shoulders due to the difference of opinion or performance issues and so on, can be resolved using Mediation. Mediation tries to bring the strained relationship in one room, tries to explore the issue, navigates into it and then finds a path to maintain a dignified and a truthful ongoing relationship.
Workplace mediation, in general, is felt that mediation is successful when the mediation room consists of a Mediator and the conflicting parties alone. The common notion is that the parties between whom the dispute exists would be the better persons to explain their situation and the cause that stood as a reason for the dispute. The open talk and the health behavior of the parties can be easily controlled by the mediator to sort out the issue in hand.
Workplace mediation cannot be confined to two individuals, there may be exceptional situations where there may be situations where a representative's need may be inevitable. The need for a representative may depend on the complexity and seriousness of the dispute.
The situations when either of the parties can be accompanied by a representative:
- In case a deaf or a dumb employee needs a carer to accompany him/her into a Mediation room then they can be accompanied by a sign language interpreter.
- There may be employees who might not have fluency in the language and some may be from other countries who might have command over their own language. In those situations, they might feel strange and incapable to explain their emotions, feelings, and thought. In those conditions, the said employee can be accompanied by an interpreter or a translator.
- Either of the party may seek the help of the Union representation in cases where the dispute is between the employee and the higher officials. In those cases, the Union representative helps the higher officials to understand the difficulties and the problems faced by the employee without blaming them.
- In cases of bullying and harassment issues, the employee might not feel confident and they will feel fragile, Trade Union representatives will give a helping hand and they would sit with them as a supporter.
- In some cases, the Trade Union may sit as a representative on the side of the management along with the managers, the purpose of which is to make the employees to understand the reality of the management and also makes the situation flexible for the employees to understand the management's point of view.
- A Lawyer may also assist an employee in cases where the dispute may involve any legal issue and the employee does not have any legal knowledge to make any decision on his own.
- Situations, where an employee feels incapable of deciding as to whether the outcome of the mediation would affect not only the future of the employee but also his family, the employee, can seek the assistance of his friend or family member or even his colleague.
The Union representative, a Lawyer, a friend or a family member whoever it may be, before enter the mediation room, they should always remember that they should be impartial and should remember the confidentiality aspect as the workplace conflict involves not only the credibility of the employee but also the credibility of the management or the organization itself. The representatives should understand that they are mere advisors and supporters.
The role of the representative is to be more constructive, the focus and consideration should be on his own member's interest. The representative should not interfere or interrupt the job of a mediator. The representative should be keen enough to ask for a break of a session to have a discussion with their own member if he tends to take any hasty decision out of exhaustion.
In my opinion, I feel that the mediator should decide whether the need of the representative is actually essential because the representative who comes to assist either of the parties at times may enter with bad faith. These bad faith may escalate the issue rather than to subside the problem. In order to avoid further complications, it is better to have representatives to be inside the Mediation room for the initial talks and then towards the end, the parties can break the session and could discuss and then they can make a final decision before they sign an agreement.
The model adopted by Mediator:
The Mediators adopt many models of mediation while they mediate the dispute. The Mediators at times use one model to assist the parties to reach their outcome or they may even combine the models according to the situation and the positions of the parties considering their interest. The mediators might combine two or more models to help the parties specifically in workplace mediation.
There are few models and they are:
- Settlement – the mediator helps the parties and encourages them to reach a compromise and end up in a settlement.
- Facilitative – this is a model where the mediator facilitates the parties to explain their emotions and feelings, thereby consider their interests to reach a solution. This model is also called a problem-solving model.
- Evaluative – the mediator normally evaluates the position of the parties based on reality, explain them and guide them about their legal rights and other alternative rights that they have. The mediator also tells them about the outcome of the court in the event of Court litigation.
- Therapeutic – the Mediator concentrates on the basic cause for the dispute and by finding the basic reason the mediator tries to maintain the future relationship between the parties.
NHS Forth Valley thought they don't have a mediation service still they use a facilitative model with the help of external mediators. They feel that the purpose of the facilitative model as an alternative resolution for formal process and also they feel that this model maintains the ongoing relationship.
It is felt that the Transformative mediation model stands to be the best-suited model in workplace mediation. The Transformative model helps the parties to communicate their feelings, thoughts, emotions and what they exactly want as an outcome, it may or may not happen still the model seems to be more convenient. This model reflects the fact that there exists a crisis in human communication. It also says the crisis is created due to a lack in the behavior or the manner in which the other party fails to behave than what is expected from him, this ultimately leads build a gap between two parties and the gap in turn results in a total breakdown of the relationship.
The Transformative model helps the disputing parties in a workplace whose conflict got escalated due to lack of communication sets a goal to empower them and convert their communication from destructive to constructive while traveling on the search of the issue for the conflict. Transformative mediation doesn't aim about the settlement in case of workplace conflict between a senior manager and an employee rather it aims at transforming their conflicting talk into a productive one and thereby maintain the ongoing relationship in a healthy manner.
Role of Mediator:
The Mediator acts as an impartial third party and helps the disputing parties to find their own solution for the dispute. Mediators help the parties to find the cause for the issue, shows them the open way and frank talks and end up with a creative outcome. Trained and experienced mediators know how to investigate on the issue by asking more open questions, they empathize the party when they express their emotion, they know when to distract the parties when the mediators feel that the conflict is getting complicated by arranging a separate caucus and assist the parties to invent their outcome.
The agreement reached between the parties was the party's voluntary outcome and it was not from the mediator. The Mediators role is not to judge the parties or their solution rather the mediator needs to assist the parties, the mediator listens to both the sides and would clarify the doubts and the points discussed by both the parties with the consent of both the parties.
The Mediator should be a neutral third party who should also maintain confidentiality on the matters shared with him by the parties inside the Mediation room. The Mediator in cases of workplace mediation can reveal certain points which were dealt with inside the mediation room to the Manager, Trade Union Representatives, only with the consent of the parties. The Mediator can reveal certain issues which were opened by the parties inside the mediation room though it is to be kept confidential. If an employee has done previous criminal offence, the issue is a serious unlawful act, the conflict involves serious risk. The Mediator can reveal the confidential aspects if he finds one party is vulnerable.
The Mediator has the power to call off Mediation if they feel that the way the parties behave in the mediation room might cause harm to either of the parties or the mediator himself/herself. The Mediator can also call off the mediation if the mediator finds that the expectation from the side of the Management is unrealistic. The Mediator as a person who can only assist the process of mediation can help the parties to sit for a separate caucus, explain them about the expectations of the other party and then go on with the joint session and then creates a possibility to close the mediation with an agreement. The Mediator knows to manage the power imbalance and they rebalance the same by assisting the process.
I would like to conclude that Mediation would be the best and the first resort in cases of Workplace Conflicts. Mediation will never let information go out of the mediation room and hence the disputing parties will continue their ongoing relationship without infringing the dignity and integrity. The Mediators assist the parties by using the comfortable model of mediation without judgmental or pushing the parties towards settlement. They create flexibility in discussion to make the parties have a productive relationship.