What is mediation?
Mediation is a process under which the parties submit their dispute to an impartial person, a mediator, who assist them in reaching a mutually acceptable settlement.
Mediation is based on the principle of collaborative problem solving, with a focus on the future and rebuilding relationships. A mediator impartially participates in the parties negotiations.
Unlike an arbitrator or a judge, a mediator has no authority to impose a settlement or impose a binding decision, but does guide the parties to reach agreement.
Why does conflict happen?
Conflict is an inherent part of the employment relationship. Modern organisations are dynamic and complex, made up of people with increasingly diverse backgrounds, opinions, values and expectations about work. Organisation are under ever-increasing pressure to be productive or delivering a quality service to clients. The continuous change experienced by many organisations can also lead to conflict.
There is no doubt that conflict is almost always present in work situations. Managers need to be in position to do something about conflict.
So, how does the manager identify, diagnose and deal with conflicts faced daily?
Prevention.
Generally, there is few stages of conflict:
Beginning - behaviours of opening or covering conflict, incompatible goals, avoidance of conflict, tension starts to be noticed.
Early growth - confrontation, polarisation of positions, seeking allies.
Deadlock - conflict is at peak, blame appointed, communications cease between the parties
Look for ways out of the conflict - acceptance that the problem need sorting out
Working together for a solution - collaborating and consensus
When can you use mediation?
It can be used for conflict involving colleagues of a similar job or grade, or between a line manager and their staff. It can be used, exceptionally, where there is conflict between teams, or between a trade union or groups of employees and management.
It can be used in any stage in the conflict, as long as any ongoing procedures are put in abeyance, or where mediation is a stage in the procedures themselves. It can be used after a formal dispute has been resolved to rebuilt relationships.
It can be used to address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.
There are situations, where it may not be appropriate to use mediation. It is often said in relation to mediation that 'if you can't make it better, don't make it worse'.
Mediation may not be suitable if:
- used as a first resort - because people should be encouraged to speak to each other and talk to their manager before they seek solution via mediation,
- used by a manager to avoid their managerial responsibilities,
- a decision about right or wrong is needed, for example where there is possible criminal activity,
- the individual bringing the discrimination or harassment case it investigated,
- the parties do not have the power to settle,
What are the benefits of mediation?
The main benefit of a mediation is improving relationships between individuals. The other most common benefits are:
- reducing or eliminating stress involved in using more formal process,
- retaining valuable employees,
- reducing the number of formal grievances raised,
- developing an organisational culture that focusing on managing and developing people,
- avoiding the cost of defending employment tribunal claims,
- reducing sickness absence,
- being able to maintain confidentiality.
Mediation is about getting people in the same room to discuss problems together at an early stage - 'a common-sense approach in trying to work out differences'.
Mediation in the HR environment has many potential benefits:
- it provides an opportunity for employees to talk in detail about their experiences and express how they feel,
- allows a fast response to dealing with conflict, so ensuring that parties do not become entrenched,
- is especially valuable when dealing with relationship breakdowns, both between employees and between an employee and their manager,
- provides a confidential method for dealing with conflict,
- it is suited to a small, informal environment where problems can become transparent,
- removes the damaging impact the formal procedures can have on individuals careers,
- allows parties to fully understand the perspective of others,
- allows parties to identify a way forward,
- gives parties a sense of ownership over the outcome of mediation, which enhances the sense of autonomy, trust and responsibility,
- addresses conflict that is underpinned by allegations rather than evidence.
Types of mediation
Facilitative mediation - this is the most common style in the UK. The mediator normally plays an active role in guiding the process. Using joint-problem solving approaches. The mediator ask questions to identify the interests of real issues of disagreement, and helps parties to identify and evaluate options for resolutions and settlement. The mediator does not suggest solutions, thought they may float ideas.
Evaluative mediation - puts the emphasis on reaching the settlement according to the legal rights and entitlements of the parties and within the anticipated range of court outcomes; the mediator is more interventionist, more likely to give an opinion, recommend options, and advise on the normative outcomes; mediators are often shown to have expertise in contextual issues, such as family or employment law.
Settlement or transactional mediation - encourages bargaining towards compromise between parties. Transformative mediation uses techniques to empower parties by encouraging them to take ownership of the process as well as the outcome. Transformative mediators believe that mediation possesses the power of change how people behave not only towards their adversary in a particular conflict, but also in their day to day lives thereafter. Achieving this type of long-term change is more important here, than solving a specific problem between the parties.
Stages of mediation
There are distinct phases in the mediation process.
The first stage will be to deal with the parties separately, while the remaining stages will generally be dealt with during the joint session. There may be a need to separate parties at various points and speak to them individually - if there appears to be an impasse or the mediator feels that one side is unwilling to divulge information that may help to break the deadlock.
There are occasions where shuttle mediation - the mediator moving between the parties and relying the views on each - has to be used because the parties will not sit in the same room with each other; or because at certain points it is more effective to do so. But the aim is to bring them together eventually.
Although mediation is generally assumed to take place face to face, in special circumstances, it can also be carried out via e-mail, video link or over the phone.
Separate meeting
First contact with the parties the mediator will meet the parties separately. The aim of this first meeting is to allow each individual involved tell their story and find out what they want out of the process.
Joint meeting
- Hearing the issues, the mediator generally brings the parties together and invites them to put their side of the story during the period of uninterrupted time. At this stage, the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.
- Exploring the issues, having identified the issues to explore, the mediation is now about encouraging communication between the parties, promoting understanding and empathy and changing perceptions. The aim of this part of the meeting is to begin to shift the focus from the past to the future and begin to look for constructive solutions.
- Building and writing an agreement, as the process develops the mediator will encourage and support joint-problem solving by the parties, ensure the solutions and agreements are workable and record any agreement reached.
- Closing the mediation, once an agreement has been reached, the mediator will bring the meeting to a close, provide the copy of the agreed statement to those involved and explain their responsibilities for its implementation. In some cases no agreement is reached and other procedures may later be used to resolve the conflict. However nothing that has been said during the mediation can be used in future proceedings.
Confidentiality
Anything said during the mediation is confidential to the parties. They may choose to reveal some or what has occurred during the mediation to colleagues, or their managers but only if all parties agree. The only exceptions are where, for example, a potentially unlawful act has been committed or there is a serious risk to health and safety.
Co-mediation
Some organisations use co-mediation, and although it requires a greater number of available mediators, it is seen to have a number of advantages:
- one mediator can take a lead and the other can pick up on issues that are missed, areas of agreement, or areas that need further exploration.
- where parties have become stuck, they can be separated into different rooms and the mediator can help them recap, and refocus on why they are there.
Timing
Mediation can be a far speedier process overall than a formal disciplinary or grievance procedure. If it is to be successful there need to be a fairly tight control over the time it takes to arrange the mediation once the parties have agreed to take part. Most mediators feel that mediation must be offered quickly or it won't achieve its objective of discouraging formal complaints.
How quickly the mediation can be arranged will be determined, to a degree, by the number of parties involved, the nature of the complaint, availability of internal and external mediators, and availability of parties themselves.
Although it is difficult to be prescriptive about the timeframe, a process that is too drawn out will risk the conflict escalating and making a mediate settlement far harder to achieve.
The time taken for the mediation itself, as with the overall process, will vary on the number of people involved and the nature of the compliant. For those taking part it can be an intense experience, and they will need time to move through different emotional states in order to reach the position where they can emphasise sufficiently with the other party to reach a lasting agreement. Mediation tends to take longer in larger organisations, in the public sector, and when an external mediator was used.
Once the mediator has spoken to the parties they may have a cleaner idea of the minimum time needed. It may be that several different meetings are needed over a period of a few weeks, but it is advisable to set aside a whole day in the first instance.
Location
Where the mediation takes place is fundamental to the process. Finding a suitable room off site, in a neutral location, can help protect confidentiality, and removes parties from the environment associated with the conflict. There should be a break-out room if things become heated to allow parties time out what can be a demanding process.
If a neutral location is not available, than at the very least, it is helpful to have the meeting in a different office.
If at any point during the proceedings one of the parties wants to withdrawn from the mediation, for whatever reason, the mediator will inform the co-ordinator that the mediation will not proceed but will not indicate why or who has decided to pull out.
There may also be a situation where the mediator feels that mediation should be stopped. This may happened if:
- it becomes clear that the situation is serious enough that it should be a formal grievance, rather than a mediation,
- one party's behaviour is unacceptable,
- one party becomes too distressed to continue.
Outcome and agreements
A mediation may end in an agreement between the parties or there may be no agreement even where there has been no breakdown in the process. However, the line manager or mediation coordinator will not be informed of the outcome or content of any agreement unless the parties have both agreed to it.
It may be that the manager notices an immediate improvement or relations or relations may improve over a period of weeks or months, or it may not improve at all, or even deteriorate further. It may be worth using the mediation again in the future, or it may be that more formal procedures need to be brought in.
At the end of the successful mediation, the individuals involved may not e firm friends but they will have a professional working relationships.
Mediating Conflict
Mediation is managing conflict through the efforts of a third party that brings the conflicting parties together and tries to resolve it with them through discussion of the issues. The goal is to try to find a workable strategy that both parties agree to work with.
There may be times when you are called to intervene and manage conflict between colleagues at work so you will find the following guidelines invaluable when mediating.
Mediation is :
- Structured. Mediators help people take things one step at a time, in a particular order. For example clarifying and agreeing the problems before looking at solutions, expressing concerns before expressing ways forward.
- Specific. People are expected to be clear about what is happening, how they feel, and what they want to do about problems.
- Safe. It has inbuilt ground rules to help keep lines of communication open, maintain control, and encourage feelings to be expressed without aggression and blame.
Mediators help the disputants:
- Communicate. Say what they need to, hear what the other side has to say and respond to one another concerns.
- Co-operate. Work together on problems, and work towards settlement, rather than aiming to win, or at least to be proved right.
- To be more confident. Trust themselves, trust one another, find creating ways of fixing problems. Use their interpersonal skills rather than falling back into negative patterns such as 'avoid' or 'fight'.
Mediator do not:
- make decisions for the parties,
- judge who is right and who is wrong,
- take sides.
Prepare
Before you start you need to prepare. Firstly, you need to prepare yourself. Are you the right person? Can you be impartial? Secondly, prepare the room. The atmosphere need to be relaxed, free of interruptions, safe and neutral environment. Than, you need to prepare the others. Let them know in advance how the session will work, get them to set time.
Process Outlines
The below process outlines can be used as a form during the mediation process:
Welcomes
Opening Statements
Ground rules
Agreement to mediation
Introductions
Discussing the issues
Prioritising issues
Working on solutions
Clarifying agreement
Maintaining outcomes
Pre-mediation meeting
The meeting is carried out in many mediations and it allows both the disputant the opportunity to discuss the mediation prior to the actual meeting. The mediator will meet separately with both disputants and inform them of the format and objectives of the mediation process. This meeting allows to discuss structure, content and timings.
The meeting should be designed to cover the following:
- agenda items,
- explain the structure of the mediation,
- set out the reason or the mediation meeting,
- ask questions to get prior knowledge of the dispute,
- indicate what will and will not be discussed,
- reassure the disputant,
- determine times, durations and location,
- go over any questions or queries from the disputant,
- emphasise that their participation is voluntary but will allow them to discuss it in an open and non-judgemental way.
Here are some questions and statements that would allow the pre-mediation meeting to process positively:
* What are your expectations?
* What are your goals from the meeting?
* What have you tried so far to resolve?
* What are your expectations of me?
* I can help you to make choices and decisions.
* If your colleague contacted us what you like us to do?
* I am not in the situation take sides. My job is to allow you and your colleague to...
* It sounds to me that you want to meet your neighbour. Am I correct?
* Is that what you want?
* How do you see the situation?
* Where you want me to go with this?
* What outcomes or goals are important to you?
Step 1 - Get started on positive note
Clearly and explicitly state the essential elements of mediation; facilitating the parties to find their own best solution, emphasising impartiality and confidentiality on your part. Explain that mediators give each party equal attention and will not be passing judgements. Set the ground rules: non interruption if there is more than one person and the approximate length of visit. Ask if anyone needs explanation but also emphasise that they can ask questions at any point during the visit. Stress the mediation is always a voluntary process.
Step 2 - Active listening
Listen to what the party has to say using paraphrasing reflecting, open questioning and summarising. Focus on specifics to get disputant to move away from personal blame. Ensure they can separate performance issues from personality attacks e.g she is very stubborn, or he has got a bad attitude.
Be aware, that postures and gestures send out unspoken messages. Ensure that you show that you are giving your full attention. Are you aware of the possibility of a party projecting the other party's views or personality on you? Use your co-meditator to support you.
Step 3 - Reviewing options
Encourage both parties to work together by discussing common goals and agreeing the problem between them without blaming the other. Encourage open communication any try to clarify for themselves what their options are. Getting each party to create options allows them to see past the conflict that they are currently engaging in. Options give them a future focus that can lead to opportunities for recognition and empowerment. Check feasibility of options with the parties to see if either can identify ways forward from the options put forward. Remember options are not answers so resist the temptation to jump on the first practical solution put forward by either party. Work out an action plan.
Step 4 - Work out an action plan
- Agree measurable actions in writing
- Confirm details of actions
- Check understanding of tasks so there is no confusion
- Work out fall back proposals and ways of continuing working on the problems
Arrange follow up meeting for both parties to continue to work together reviewing and setting objectives
Opening the mediation
The mediator generally opens the mediation with some statement which explains what the parties can expect from the mediation process.
1) Welcome and words of encouragement.
2) Personal introductions - check what the parties prefer to be called.
3) Explaining briefly the purpose of the mediation, and the role of the mediators which is to:
* give each side the opportunity to speak and be heard,
* control the session with the parties help,
* explore ideas for settlement realistically,
* not make decisions for the parties or judge write or wrong,
* work towards the future rather than go back constantly over the past,
* help the parties work at their pace and make the best possible use of the time.
4) Introducing and agreeing ground rules, and what is expected from the parties:
* listening - speak one at a time,
* openness - it is required that the parties are open with one another, information when requested and are also open to the possibility of resolution,
* patience - people are asked to stay in the room - we can discuss problems and doubts if they arise,
* people are expected to remain seated at all times,
* confidentiality (and note-taking) apart from an agreement anything said stays in the room, notes will be destroyed, things said in the mediation cannot be used in court,
* respect - avoid accusation and blame, and abusive language,
* control - people may be angry or upset, and they and mediators can call a break, but the mediator will use various kinds of control to keep both sides working as constructively as possible, for example, interrupting name-calling sessions,
5) Explaining how the session will be run:
* comfort facilities and breaks, duration of session
* who will speak first - outline of the process
* agreements may be reached, can be written and are not binding in court
6) Dealing with questions
7) Checking with each disputants willingness to participate
Interactions
A mediator cannot help but have influence in the parties interaction. Because the mediator is present, the interaction will unfold in a different way that it would have if the mediator were not there.
The question is not whether the mediator has influence, but what kind of influence the mediator should have.
These are strategies the mediator can use to help disputants understanding and help mediator keep control.
* Reflecting is often helpful when something a party has said os unclear and complex, when a party seems uncertain about what he or she is saying, and when the listening party seems to have missed an opportunity in something that was said.
* Summarising is helpful to highlight that a moment of empowerment or recognition has occurred, and when the parties seem to be confused about what has happened in the session so far and when the session appears to be coming to a break or conclusion.
* Questioning is useful to encourage a party to elaborate on a point the party made, to encourage dialogue, and to invite a party to deliberate or to consider new information.
* Checking in is helpful when the discussion appears to have raised choices to the parties to make about either the process or substantive issues.
* Silence is valuable for letting the parties reflect on or sit with something a party has just said
* Non-verbal clues, such as eye contact, facial expressions, or gestures, can be useful for probing whether the party wants to continue speaking .
When to interact
* When no new information is coming from either party,
* As long as the opportunities for empowerment and recognition are still coming through,
"Can I just interact you for a moment"
"I would like to pause for a moment"
"Early you said that..."
"It might be useful if we were to explore this"
"I would like to summarise because I feel I may have missed something that you said ealier"
"Would you like to give me a brief summary of the issues which are important to you"
"Can you explain what your understanding of what you feel should be on the agenda"
"What do you think will happen from here"
"When did you start to think that?"
"You said earlier you felt this way because of ........ could you explain that in more details?"
Response
Reflecting is saying back to the speaker what you believe the speaker has just said, using language that is close to the speakers own. A good reflection should capture both the substance and the emotional tone of what the speaker just said, without parroting. Reflecting should be used with caution, because it can be a very subtle way to manipulate or reframe of what the speaker has said for the mediators own purpose.
"What I am hearing is..."
"What you seem to be saying is..."
"What I understand you to be saying is..."
"In other words..."
Summarising is condensing a series of things a speaker has said, or a series of things that have happened, into its essential points.
"So what you want to talk about today is..."
"Let me summarise what we have talked about so far..."
"The concerns that have brought you the mediation are..."
"There are number of things you would like to accomplish today, including..."
Questioning is best done with open-ended questions that encourage reflection, elaboration, dialogue and deliberation. Closed ended-questions (those that can be answered with yes or no" and leading questions (those that suggest their own answer) generally are more about what the mediator is thinking than they are about what the parties are saying.
"What did you mean by.."
"What o you want Andy to understand about that...."
"What more would you like to say about that?"
Checking in is the way to make the process transparent by asking the parties whether a decision point that you have noticed is one they want to consider and/or act upon.
"So where do you think the discussion should go at this point?"
"Are you comfortable with the way this conversation is going?"
"Are you ready to move on to ..... or do you want to stay with this part of the discussion a while longer?"
Statements and questions to use in a mediation meeting to clarify and gently interrupt.
"It's your choice to say what is important to you about this"
"What were your goals that you were hoping to achieve from this meeting"
"One of your choices is to decide your own guidelines for the meeting so what you would like to do is..."
"What would the both of you would like to do?"
"What would the both of you would like to get out of this meeting?"
"It seems if you are approaching your first agreement shall we discuss this further?"
"Is good that you are covering a lot of ground here"
"One the thing I hear you say is..."
"Where would you want to go with this?"
"Are you both agreed to that?"
"Would you like to focus on particular issue or move forward?"
"So you are concerned about that? Would you like to talk about it?"
"It seems that you also have concerns about..... I wonder if I can stop you for a minute and explore this?"
"If I can be of help and summarise what you have just said"
"If I can be of help and summarise. It sounded as if you wanted to look at this in more detail"
"It sounds to me that one of your goals today is..."
"You feel that you are not appreciated by ..... and that you feel disrespected. Have I understood that correctly?"
"From you said you are not interested in..... but one of your choices is..."
"You said that if this happens than you will be able to..... I am wondering if this is the direction you want to work with now or choose to go in another direction"
"You are saying that you want to consider...."
"I am wondering if you had anything you would like to say to.... about this"
"So you are saying you are not getting any answers and also that you don't have any information on that. Is that correct?"
"How do you feel about having the opportunity now to talk about..."
"So you are saying that the noise is making you angry. Would you like to explain what it is about the noise which is making you angry?"
"So you are saying that.... is making you feel...... Would you like to explain how its affecting you in this way?"
Finishing
This can be both an uplifting and powerful way of getting both parties to recognise that they are moving forward even though they may be a long way from reaching a settlement. An accomplishment is any factor that is helping both parties to see themselves and their conflict in another, more positive light. It might be such factors as recognition of the others feelings, new understandings.
Recording
Although agreements are one possible outcome or accomplishment of a mediation session, when mediators focus on producing agreements as their sole task, a number of risks may arise:
* Mediators may overlook the opportunity to record the accomplishments which may be significant to the parties, such as apologies, new understandings, and individual decisions about the process or the content which may not be in the form of an agreement.
* Mediators may view agreement-production as a step for which they are responsible, rather as part of the ongoing interaction with the parties.
* Mediators may see agreement production as an end-stage of the mediation, something administrative to be tackled on when the mediation is finished.
* The writing is part of the process, not simply a product. Producing the writing should be an interactive, conversational process in which the parties are actively involved.
* Writing can occur at any time during the process, not just "the end". Parties sometimes want to have summaries of their accomplishments as they move through the mediation, particularly if there are multiple sessions.
* A writing should record all significant accomplishments of the session. This includes decisions about the process of the mediation itself, decisions to give recognitions to the other, and substantive decisions about the dispute.
* The parties determine what is significant and what should be recorded; the mediator facilities their decision making in this regard.
* The parties determine whether there should a writing at all. They may want one, even if no agreement was reached or a partial agreement was reached. Likewise they may not want it writing, even if agreement was reached. The mediator should facilitate this decision.
*Opportunities for decision making exist with respect to whether to write, what to write, who should write, when to write, how to write, who should be involved in any review of the writing, and how review should take place.
*During the writing process, the mediator checks with the parties constantly for understanding, clarity, detail, and practicality.
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