How is Workplace Mediation Unique? Part 3
Part 3: Challenges in Workplace Mediation
June 2023
This article is the last of a series of three articles about how workplace mediation is unique. In part one, I wrote about the unique features of workplace mediation, namely that:
It is purely about a relationship, not transactional
It is essential to have a pre mediation meeting
A third party is involved
The alternative to mediation is not clear
In part two, I outlined my approach to conducting a workplace mediation. I discussed how I felt that there are four main considerations that must be covered in workplace mediation. These are:
Assessing the understanding of the HR manager or referring manager of the employer organisation, the process of mediation and the mediator’s role.
Assessing each party’s psychological state and ensuring that they are well enough to participate in the mediation.
Assessing whether each party is sufficiently motivated to participate and will attend in good faith.
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.
In this current article, I will be discussing the main challenges when conducting a workplace mediation.
I consider the main challenges to be:
1. Lack of motivation of the parties to attend mediation
2. Emotions of the parties
3. Dealing with the employer organisation
4. Confidentiality
5. The alternative to mediation is not clear
1. Lack of motivation of the parties to attend mediation
One of the main challenges is motivation. Often parties are reluctant to participate in a mediation. They have often arrived at mediation as their HR manager has asked them to attend. One of them may be keen as they have a problem with the other person that they wish to resolve. The other person may not be interested, as they feel they have no issue with the other person or even if they do, they feel that HR should arrange an intervention to address the other person’s behaviour.
So, how do we get the parties motivated to attend? I suggest that some approaches are:
Indicate that it is an opportunity to move on from past conflict and create a better working relationship with the other party.
Ask them how they would like to feel more comfortable coming to work. How could they get mediation to help with this?
Find out what is most important to them about their job – a hook. And ask them how that could be helped by mediation. So they can see from a pragmatic point of view that the mediation could benefit them.
Ask them how the other party could support them in their work.
Ask them what they think will happen if they don’t do the mediation. How will the matter be resolved?
Get them to reflect on how the mediation is an opportunity for them to work out options for working better together, instead of management making a decision for them.
2. Emotions of the parties
It can be difficult for parties to talk about what has happened without getting emotional. Having the pre-mediation meeting helps the parties talk through their feelings, so that they may be calmer when speaking in the mediation. The pre-mediation meeting can also help a party feel heard, as the mediator listens to them on the history of their concerns with the other party, as well as what they would prefer the workplace relationship or situation to be like.
In the actual mediation, having a clear structure for the mediation helps. This includes setting the ground rules so that the parties trust that the mediator will create a safe space for the conversation. Also, emphasising that the parties may have a break at any time if they feel upset or irritated. And pointing out also, that each party has control over whether they stay in the room or not, as they may terminate the mediation if they didn’t feel comfortable.
Setting an agenda also helps the parties feel more confident about what they are going to speak about and to feel that progress is being made as they talk about each topic in turn. When the mediator summarises, this makes the parties feel heard. Having a private session after the first joint session also helps, as this gives the parties an opportunity to reflect as well as have a break from the joint session.
3. Dealing with the employer organisation
As indicated above, the mediator is briefed by the HR manager or another referring manager of the employer organisation. They are retained by the employer, who is a third party in the mediation; they ( he referring manager) are not a party in the mediation, but a stakeholder in the outcome. It is important to have a proper intake meeting with the HR manager. The intake meeting will involve ascertaining the employer’s hopes for the mediation. It will also be the opportunity for the mediator to be briefed on the conflict, any background to it, and if any interventions have occurred already, for example, an investigation, and if so, what were the results of that.
It can be challenging for a mediator to deal with HR managers at times, depending on the level of knowledge that the manager has about the process of mediation. Sometimes the expectations of a manager about mediation are unrealistic, for example, that they feel they should be informed of what the parties say in the mediation. Or they rely solely on mediation to resolve the issues, but they don't know or have a plan of what to do next if it doesn’t work.
In order to start well with the HR manager and provide a good service to them, the mediator must explain the process of mediation, what it is and what it isn’t. For example, a mediation involves assisting the parties to come up with their own solutions, it’s not about the mediator proposing solutions for them. In addition, it is a voluntary process, so the mediator will need to meet with the parties to confirm that they would like to do the mediation. Furthermore, that it is a confidential process, so the content of what is discussed at the mediation can not be divulged. The mediator, will usually, obtain the parties’ agreement to sharing a copy of any outcomes reached with the HR manager and any other managers who are involved.
In addition, the mediator should ask the HR manager what steps they might take to resolve the issues if the matter is not suitable for mediation or if the mediation does occur but doesn’t resolve.
It is best for the mediator to provide written information on the process for the HR manager as well, so that there is no confusion. I always provide a document that I name, “Information on Mediation for Referring Managers”.
4. Confidentiality
Confidentiality is a big issue in workplace mediation. Basically, what is said in the mediation is confidential. Also, what is said to the mediator in the pre mediation meeting is confidential as well. Generally, as indicated above, the parties agree that a copy of any outcomes can go to the HR manager or other managers involved.
I outline below some issues around confidentiality.
Sometimes an HR manager or referring manager will expect that they can be told what is said in the mediation. The mediator will of course explain to the manager that this is not possible.
When the mediator conducts the pre mediation meeting, they will be assessing for suitability for the mediation. The suitability will depend upon whether the parties are both motivated for the mediation and agree to participate. Also, whether the parties are both psychologically well enough for the mediation. Overall, the mediator will be assessing if the mediation will be productive and safe. If the mediator assesses that the matter is not suitable for mediation, they will need to say this to the HR manager. Sometimes the HR manager will insist upon a reason, but the mediator is not able to divulge the individual responses of the participants, or the mediator’s concerns with their motivation or otherwise. This can be simplified if the parties themselves tell the mediator or HR manager that they do not wish to attend mediation.
During the pre mediation meeting, a party may indicate a severe level of poor psychological health, for example that they feel suicidal. There are no reporting obligations on mediators (as far as I am aware) about this. But it is my position that I believe that this should be reported to the employer organisation. To allow this caveat to confidentiality, I have a clause in my Mediation Agreement to give permission for this. Generally, if this were to occur, I would say to the party that I would need to tell the organisation. If they did not agree, I have this clause to cover for this situation.
5. Lack of clarity as to what will happen if not suitable for mediation (or if not resolved)
It is important to ask the HR manager at intake what steps they would take to resolve the issues if the matter is not suitable for mediation, or if it did occur and wasn’t resolved. Often, I find that they have not considered this and won’t until the possibility of resolution by mediation has been explored. This creates two difficulties for the mediator. Firstly, there is more pressure on the mediator to find the matter suitable for mediation. If the mediator finds that the matter is not suitable for mediation, the HR manager may be unhappy with the mediator. Secondly, that when assessing the parties’ willingness to participate in mediation, they may be less motivated as they do not know what the next step would be if they dont participate. If they knew HR’s plan for the next step to resolve the issues, this may focus their minds on the opportunity to resolve the matter themselves through mediation.
In considering the challenges of workplace mediation, the dealings with the HR manager and a clear explanation of confidentiality are important. In addition, the mediator needs to be mindful of the emotions of the parties in this area of conflict and indicate to them how they will create a safe space for them in the mediation.
This concludes my series on How is Workplace Mediation Unique?
Elizabeth Rosa is a Nationally Accredited Mediator, a Trainer and the Principal of Resolve at Work.