How is Workplace Mediation Unique? Part 2
Part 2: My approach to conducting a workplace mediation
This article is the second part of a series of three articles about how workplace mediation is unique. In Part one (7 March 2023), I wrote about the unique features of workplace mediation, namely that:
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
In this article, I outline my approach to conducting a workplace mediation. It is an approach based on the traditional model of mediation, which covers the elements required by the National Mediator Accreditation System Practice Standards for mediations. These standards specify that:
Mediation is a process that promotes the self-determination of participants and in which participants, with the support of a mediator:
(a) communicate with each other, exchange information and seek understanding
(b) identify, clarify and explore interests, issues and underlying needs
(c) consider their alternatives
(d) generate and evaluate options
(e) negotiate with each other; and
(f) reach and make their own decisions.
A mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes.
[From Part III 2.2 of the Practice standards of the National Mediator Accreditation System (NMAS)].
It is clear from the NMAS standard above that a number of elements are required when conducting a mediation, but when it comes to workplace mediation, some of those elements require a few unique considerations.
My approach to conducting a workplace mediation has been refined over a number of years and leads me to conclude that there are four main considerations that must be covered in workplace mediation. These are:
1. Assessing the understanding of the HR manager or referring manager of the employer organisation of the process of mediation and the mediator’s role.
2. Assessing each party’s psychological state and to ensure that they are well enough to participate in the mediation.
3. Assessing whether each party is sufficiently motivated to participate and will attend in good faith.
4. Assisting the parties in the mediation to listen to each other and try and understand each other, rather than just to present their point of view.
Some of these considerations are relevant to areas like family mediation, but the fact that a workplace mediator needs to consider the understanding of mediation and hopes of a third party, the employer organisation, is unique. The combination of these four considerations may well set workplace mediation apart from other areas of mediation.
The first consideration for workplace mediation is that initial contact must be made with the HR or referring manager, in the form of a brief intake meeting. The purpose of this meeting is to clarify their understanding of the mediation process and what is within the mediator’s role and what isn’t. The workplace mediator is hired by the employer organisation and must ensure that the HR manager, or referring manager, has all the information about the process that they need to be on board with, for the job that the mediator will be doing. The mediator also needs to understand the HR manager’s goals – what their hopes for the mediation will be.
For a workplace mediation, it is important to conduct a pre mediation or intake meeting individually with the parties. This is so that the parties can reflect on their feelings regarding the conflict that has brought them to mediation. It helps them prepare to speak at the mediation, to clarify each of their own needs that they wish could be met by the other party. The pre mediation meeting also helps the parties to start thinking about the options they would like to propose for working in a more harmonious way. In other words, it will help them to shift from an emotional stance to executive functioning.
It is also important to assess each party’s psychological state - their level of mental wellness. It is imperative that the mediator screens participating parties for suitability for mediation, to ensure that they are both psychologically well enough for the mediation, are sufficiently motivated and will participate in good faith.
I have developed process steps in order to ensure that I cover off all the considerations referred to above. I detail these steps below.
Conversation with HR manager
Firstly, I have a half-an-hour conversation with the HR manager or referring manager. I get the background to the conflict. I ask what HR would like to achieve: whilst the mediator is not directed to follow this, it informs the mediator of the employer context of the mediation. I explain the process of mediation to them and that I will screen for suitability. I will let them know after the pre mediation meetings whether the matter is suitable for mediation.
I give the referring manager a document explaining the process and about confidentiality. I explain also that I would need to speak to the line manager of the parties. Usually, I suggest that if the parties reach an agreement, that a copy of the agreement is shared with the line manager and that he or she review it a few weeks after the mediation.
I ask the referring manager to set up the pre mediation meetings. Once these are arranged, I send the parties information about the process, as well as the mediation agreement about confidentiality.
Pre mediation meetings
Pre mediation meetings are important to help the parties think through and articulate what concerns they have. I also screen for their psychological wellness. This involves asking how they are feeling, and if they haven’t been feeling well, what support they have in their life - friends, family or if they have considered counselling. By suggesting counselling, this points them in that direction, which can be very helpful if they are really struggling with the situation.
I ask them what they would like to achieve from the mediation. This way, I can gauge if they have hopes for an improved relationship. I ask them questions to ascertain what their real concerns are. I often do this by finding out what frustrations they have with the other person and what they would want from them. To help encourage the best outcomes to the mediation, I will often ask each party to imagine that they are in the “other person’s shoes” and to consider what that person may find frustrating about them and what they would want from them. Towards the end of the meeting, I ask what ideas they have for improving the working relationship with the other person. This is to get them thinking about proposing options during the mediation, with a goal of reaching an agreement on ideas with the other party.
The next step is to go back to the HR manager and confirm if the matter is suitable for mediation. For it to be suitable, I need to feel that it will be productive and safe. In other words, that it will be constructive as the parties are sufficiently motivated. Also, that it will be ‘emotionally safe’: that the parties are psychologically well enough to participate and that they would attend in good faith.
The mediation
At the mediation, I emphasise that the process is about listening to each other and trying to understand what the other has said. It’s not about trying to convince the other that they are right.
I confirm the draft agenda with the parties. It is usually starts with the heading “Hopes for the mediation”. Other agenda items may be speaking about an incident that occurred between them. I frame this by getting them to talk about how they each felt and what they would have preferred to have happened. Other topics may be Communication – to look at what it is like and what they would like it to be.
After the discussion, I then ask them to talk about ideas for how they could work better together. I put up some key words on a white board.
The next step is to break into private session. I ask the party how they feel it is going. I ask a scaling question about this: on a scale of 1 to 10, where 10 is the highest, how do you feel it is going? Then, if they say for example, a 6, I ask, ‘What would bring it to a 10?’ This elicits what they feel is missing, for example, an acknowledgement.
I encourage them to reflect on the ideas about working better together that have been put forward so far, and what they feel about those.
Final session
We regroup in the final session, where the parties explore more ideas about how they could work better together. They then agree on some of these and write them up as an agreement. I ask them to note on the agreement who it may also receive a copy, for example the HR manager and their line manager. As I mentioned before, I recommend that the line manager review it in four weeks’ time to see how their relationship is going.
Conclusion
I have outlined the steps that I undertake in a workplace mediation, in order to unpack the parties’ needs and concerns, and to set the scene for a constructive and safe mediation. These steps incorporate the considerations mentioned above which are specifically needed for workplace mediation. Some of them are unique to workplace mediation, for example the interview with the referring manager.
The other considerations are relevant for all areas of mediation which concern relational issues, for example family mediation. But for many types of mediations, particularly those involving legal rights and entitlements, many of these considerations would not be relevant. For example, there is no practice of screening for psychological wellness in those types of mediations. Workplace mediation has a unique combination of considerations and therefore requires a number of steps that are not required in all other areas of mediation.
Stay tuned for the rest of my comments on this topic. In part 3, I will be commenting on challenges in workplace 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.