Mediation Top Ten Tips Guide

WORKPLACE MEDIATION Top 10 Tips for HR Professionals Produced by

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Introduction Poorly managed conflict costs British employers £24 billion every year [sources: OPP and CIPD]. Our own research indicates that over a quarter of HR professionals are spending as much as 1 day a week (more than 45 working days per year) on workplace conflict, equivalent to £8,644 to £10,000 each per year.

Government is actively encouraging us to use mediation, thereby avoiding costly and stressful grievances and Employment Tribunals.

Now, more than ever, UK businesses of all sectors are starting to put mediation at the centre of their conflict management procedures and acknowledging the enormous value it can bring to their people and the organisation. Good mediation, coupled with the appropriate support measures and an accurate assessment of the conflict scenario, can transform individuals, teams and even cultures within a very short period of time, and ensure the cost savings of resolving the issue are achieved before the next, increasingly costly, formal stages.

However, there is an appropriate way of using mediation in the workplace and a risk of wasting the opportunity, or even making the situation worse if it is not used properly.

For 13 years, we’ve helped to resolve employee relationship breakdowns through professional mediation. By sharing with you some of what we have learned along the way, we hope that you will be equipped with the key considerations to bear in mind before introducing mediation into your organisation.

We hope that you find this Guide enhances your knowledge of mediation best practice and that your colleagues may also find it useful.

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Take Away Tips

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What is Mediation?

Workplace conflict can arise for many reasons, including: perceived discrimination, jealousy over a promotion, underperformance, incompatible working styles or personalities, opposing targets, or returning to work intervention. Whatever the issue, mediation (also known as Alternative Dispute Resolution (ADR)) can provide a quick, pain-free and cost-effective way of resolving matters.

Mediation is an informal dispute resolution process, facilitated by an impartial and trained mediator, aimed at bringing two or more parties together to clear up misunderstandings, explore concerns, and reach an amicable resolution.

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When Should You Use Mediation?

Mediation can be used at many different stages of the conflict process:

Informal

During the early stages of a dispute, mediation can be used as a highly effective intervention to resolve conflict. At this stage the mediation is entirely voluntary and confidential involving an independent, impartial person (mediator) helping two or more participants or groups reach a positive solution acceptable to both/all. Focus here is on restoring relationships and moving forward.

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Formal

Post Formal

Mediation can also be considered at the formal stage, providing all parties are willing to put that formal process on hold (mediation here follows the same principles as the Informal stage).

Far too often following a grievance or disciplinary case the parties involved are in need of mediation support to help them integrate back into the workplace (this is a very effective support process which can include a more formal approach to the sharing of agreements reached by participants).

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First Steps – What’s Your Mindset?

When conflict boils over in the workplace, it is tempting to quickly bring the parties together and point them towards a resolution. You can see how they need to work it out, ‘It is just a matter of telling them, right?’.

No, not really. A more sensitive approach, based on our current knowledge of interpersonal relationships, usually gets better results which are more relevant to the individuals, and longer lasting.

Time and again, we come across well-meaning, but perhaps ill-advised, colleagues confusing informal HR meetings with mediation in its most valuable and effective form.

Perhaps it is time for HR professionals and line managers to gain a better understanding of what mediation is, what it can do, when it should be used, and whom is best placed to mediate competently and without bias.

After all, the way mediation is introduced into your organisation will shape the way it is embraced and embedded in your culture.

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1. NO SURPRISES - LAY THE GROUNDWORK www.peopleresolutions.com

Early, informal one-to-ones with line managers or HR are essential for understanding the scope of the issues, but should not take the place of the mediation itself.

Once the relevant line or HR manager has learned of a conflict situation at work, they will probably want to sit down with each party to gain a fuller picture of the situation.

There is much to be gained from these conversations, and one possible outcome may be to propose a mediation.

Problems occur when the meeting turns into the beginnings of a mediation of sorts, before the parties have been duly prepared and have an understanding of what is involved.

There is also a risk that, in this context, there is a lack of complete impartiality and that professional mediation practice models are not being followed. This poses a significant risk to the credibility of the process and the way the parties are being supported.

Assess any risks to others, or to the business, and their seriousness.

Core Objectives of a Needs Assessment

Gain an overview of concerns

Establish the history of the issue/s to date and the people involved Understand what the parties are looking to achieve

Pick up on any issues which might mitigate against mediation, such as mental health issues or major liability for the organisation.

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2. POSITION MEDIATION POSITIVELY TO GIVE GOOD RESOLUTION A REAL CHANCE

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The timing and framing of a safe mediation are pivotal to gaining the participants’ agreement.

When employees are at loggerheads, mindsets can become fixated on being ‘right’ above anything else, or having their day in court. Bristling with indignation and defensive, the parties are often far from seeking out a way to address the real issues at the heart of the conflict.

It follows that when mediation is introduced without proper preparation, sometimes with a formal investigation in the background, it is not surprising if there is uncertainty and resistance.

A new process such as mediation – particularly if it is not set out within your policies – can arouse suspicion when offered.

The parties may assume the organisation is trying to brush the issue under the carpet, or re-route it away from formal

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proceedings, and some issues may be partially addressed by the initial one-to-one meetings.

“What’s in it for them?” they may ask.

It takes careful positioning to help each individual buy into the spirit of mediation, to consider what they might personally gain from it and to agree to take part with an open mind.

Those involved need to know that the mediation process is completely voluntary, confidential, neutral and without prejudice.

All parties need to know that they are welcome to leave after the initial one-to-one meeting with the mediator, if they wish, so any feelings of pressure and

expectation are minimised.

It is important to let them know who is available to conduct the mediation, that they have been trained in mediation and selected to ensure that they have no vested interest in the outcome of this particular situation.

Being clear, informative and reassuring can prompt even the most reticent party to give mediation a try, although sometimes no amount of persuasion will deter an individual from wanting a more formal approach.

We always contact parties the day before our professional mediations to introduce the mediator and clear up any queries about the process. For the sake of a few minutes, it maximises the likelihood of everyone attending on the day. And that is one your main hurdles overcome.

Once any formal claims have been investigated and procedures exhausted, the parties (in a different mental space perhaps) may need to be able to work together again and mediation can then be used to great effect.

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succeed in getting the parties to mediate and half the battle is won.

3. CAN YOU HEAR ME NOW? www.peopleresolutions.com

It’s easy to underestimate the value of the one-to-ones with the mediator in paving the way for an effective joint session.

Typically, a mediation begins with individual meetings with the mediator for each party to voice their concerns, before a shared, facilitated, discussion to map a resolution.

Use only well-trained mediators, either internal or external.

Airing their thoughts and frustrations in private with the mediator can create a sense of ‘being heard’ and free up the individual’s energy for the shared process to follow.

It can begin the process of ‘looking forward’ and also ensures that the mediator is aware of some of the boundaries and limitations for each party before the shared part of the process begins.

Mediation is therefore concerned with listening, picking up on key points, not taking sides, managing difficulties and facilitating the parties to their own solutions.

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4. PROTECT THE PROCESS AT ALL COSTS

Mediation is constructive and future-focused; it is not a vehicle for reprimand, nor does it lead to a pre-determined outcome.

When an organisation invests in an internal or external resource for mediation, it’s understandable that the parties may wish to use it as an opportunity to relive certain events and ‘let the other party (parties) know’ what behaviour was found to be annoying or unacceptable.

“Create a safe, respectful environment to allow for constructive discussion.”

The mediation may acknowledge the past, but the main focus is on the future.

The mediator will ensure the process is a constructive, respectful and safe environment, free from negative or inappropriate behaviour.

However diplomatically handled or honourable the intentions, using mediation as a vehicle for reprimanding the other party, punishment or leading to a pre-determined, perhaps legal, outcome will discredit the mediation process and any formal proceedings in the background.

Create a short information sheet for all potential parties to a mediation to underline the purpose and process of mediation and the behaviour expected. It is also useful to outline any boundaries around confidentiality. Usually any content of a mediation is only shared with others, such as the line manager or HR, by agreement with the parties and the mediator, unless exceptions apply such as a serious risk to others.

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5. SLOW DOWN DETECTIVE: MEDIATION IS NOT AN INVESTIGATION

Mediations and investigations are very different in purpose and approach. All parties need to be clear about each process.

Workplace mediation addresses the issues at the core of a relationship breakdown and the emotional impact on each person involved.

Through expert facilitation, it helps participants to understand the perspectives of others and work together to achieve a resolution.

In contrast, a workplace investigation meets an organisation’s need to determine, on the balance of probability, whether something happened or not, and the seriousness.

It’s a backwards-looking process of fact finding, and so investigation interviews, quite rightly, will take note of difficult emotions, sensitively manage them but not acknowledge or deal with them.

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It’s not uncommon for parties to confuse the two types of meeting if the differences haven’t been made clear.

When parties misinterpret mediation for a formal meeting, they may ask for a Trade Union Representative, work colleague, or solicitor to be present, or prepare a ‘story’ or a list of evidence to make their case. For mediation to be effective, parties are encouraged to participate openly and ‘in the moment’, taking full advantage of the confidentiality of the process.

Together, workplace mediations and investigations are instrumental in managing conflict appropriately and with a positive outcome, as long as the purpose of each is made clear to all involved.

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The training to be a mediator, or an investigator is very different.

To avoid conflicts of interest or misunderstandings, anyone investigating a situation should not also attempt the mediation of the same situation.

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6. WHEN MEDIATION ISN'T ENOUGH A CASE STUDY

Mediation is about relationships. What happens when the problem lies more with one individual?

A Case Study A Finance Director with a seemingly overly-assertive management style has upset several members of her team, some of whom have approached HR to informally flag the issue.

The Director is extremely good at her job and believes that others are being too sensitive. No one has yet raised a grievance, but there has been a recent flare up between the Director and one direct report, and another has resigned, citing the Director in their exit interview.

The Chief Executive is aware of the situation but hasn’t yet taken any action.

There is never a one-size-fits-all approach to resolving conflict. It requires: * A proactive desire to tackle the situation, however complex the situation may appear * An understanding and an accurate assessment of the whole conflict picture * Knowledge of what tools are at your disposal (e.g. informal meetings, mediation, coaching, investigation, training) and when to employ them * Well-selected and trained coaches, trainers, investigators and mediators

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Case Study - Continued...

Here is a difficult – but sadly, not uncommon – situation for HR to address, and there is no correct path to resolving the issue.

Several working relationships are affected, and there is no doubt a negative impact on morale within the entire Finance Department, as well as political sensitivities with a senior level individual at the centre.

As there is no grievance on the table (yet), there is a window of opportunity to get things back on track informally. On paper, the situation might appear ripe for a group mediation with the Director and her team to address all issues at once.

Or perhaps a mediation between the Director and the employee involved in the recent incident.

But is the underlying problem a working relationship, or the Director’s more general management style?

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If we want to get at the root of the problem and prevent a grievance being raised, or anyone else leaving, the team need to see a positive difference in the Director’s behaviour with their own eyes.

A group mediation at this stage may leave the Director defensive and unsupported in a ‘many-on-one’ situation.

Given the impact of the Finance Director’s actions and decisions in the business, her development needs must be identified and addressed quickly and effectively.

A short series of coaching sessions, focused on her particular objectives, could bring about a lasting change in the way she treats others through guided reflection and helpful techniques.

The resolution process may be rounded off with a facilitated team meeting to outline a more positive future.

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7. AFTER THE STORM...

Many employee conflict issues that become formal workplace grievances may have been resolved much earlier, and at less cost, with mediation. But there is also a place for mediation after any formal steps to manage the consequences.

If a situation has escalated to a formal grievance, or if the nature of the allegations are serious, it must progress to a workplace investigation. The result of an investigation report, usually a very constructive document, can sometimes create disappointment for some of the parties and often a blanket of negativity remains after a lengthy and disruptive process.

Mediation plays a valuable role here, when parties are trying to re-adjust to working life in light of the investigation’s outcome. With its focus on the future, a postgrievance mediation will steer clear of dwelling on past issues and help both individuals emerge from the episode with dignity and practical commitments to working more in harmony.

During that time, the emotional issues that sparked the conflict in the first place are left unresolved, and yet it’s often the case that the parties will have to resume working together again.

Post grievance mediation paves the way for a tolerable working relationship between the parties and importantly, minimises any further impact on the parties and the organisation.

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Promising during a mediation to change one’s behaviour can be difficult in practice and may take time. Offering the parties a review meeting with the mediator in, say, 2 to 6 week’s time can reinforce the actions agreed, ensure the parties remain focused and they can discuss any problems.

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8. PREVENTION IS BETTER THAN THE CURE

The earlier a workplace issue is resolved, the less costly it will be.

How can organisations get a handle on conflict before it escalates.

Even situations that reach mediation have reached a point where the parties and line manager are unable to reach a resolution. Too often, HR only becomes aware of the case when it lands on their desk as a grievance.

Conflict is an uncomfortable issue, and one that many of us, including line managers, will seek to avoid. Conflict avoidance is a natural human tendency, particularly for managers unprepared and untrained to handle difficult conversations, and yet one that may have very costly consequences for the organisation.

One of our most popular one-day courses, Nipping Conflict in the Bud, is designed for line managers to take ownership over the management of conflict in the business and not turn a blind eye to brewing tension between employees.

With greater confidence and skill to acknowledge disputes and take the lead role in making sure they are resolved, the entire culture of the business shifts to one that recognises and prevents conflict early.

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Formal grievances take, on average, 9 days of unproductive management time to resolve, and therefore represent a significant cost. Making a case for a budget to train managers can be based on your projected savings if managers reduce by, say, 50% the number of grievances submitted last year.

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9. CONFLICT CAN’T BE EXPORTED

As conflict progresses further from its origin, it becomes more likely that resolving it will incur significant cost and fall out.

Containing and resolving conflict pays significant dividends.

We hope we’ve made it clear by now that addressing the root cause of employee problems is the key to minimising the organisational and financial impact of employee conflict.

Here’s another way of looking at it: When the burden of conflict is passed up the chain for someone else to deal with – from informal to formal proceedings and on to Employment Tribunal, where solicitors communicate on behalf of each party – the emotional core of the issue becomes increasingly buried and unresolved, while the costs merely escalate.

It brings us back to the simple truth that overcoming conflict boils down to achieving meaningful communication and resolution between the parties at the earliest possible stage.

Make it ‘normal’ to consider mediation before any complaints or grievances are considered. Put it in your policy and procedures that all grievances will be considered for mediation in the first instance.

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10. MANAGING CONFLICT IS EVERYONE'S RESPONSIBILITY

For mediation to be fully embedded within an organisation, it must be accessible, promoted and endorsed at all levels.

There are a number of key considerations to bear in mind when introducing mediation into your business: Start with values Foster an organisational culture where everyone accepts that people will have different perspectives, but that everyone expects any potential conflict to be nipped in the bud early.

Policies and procedures They need to be clear, accessible, un-intimidating and in complete alignment with messages from Leadership and in your training.

Brief all staff members... ...on the content of your policies. Everyone should be clear on what is and isn’t acceptable behaviour in your organisation.

Educate your line managers Managers are ideally placed to take ownership of conflict prevention and resolution, which may prevent many cases escalating to formal procedure. Training is essential to developing the skills and confidence to tackle awkward scenarios.

The most positive message, of course, rather than just nipping conflict in the bud, is that you are building a more collaborative culture where everyone is valued, different perspectives are welcome and used to improve relationships and business results.

Little and often Disseminate company-wide communication on a regular basis to keep employees informed, involved and up-to-date.

Prove it!

Demonstrate the business case of using mediation to the Board with a handful of successful cases.

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