mediation at work employment law advice workplace mediation training project management

Mediation at Work

Employment Law Advice

Workplace Mediation

Training

Project Management

CIPD 2010

Lili HunterEmployment Lawyer

MediatorDirector

Mediation at Work

Why Mediation?

Statutory 3-step procedures – success?

Michael Gibbons review 2007

Michael Gibbons is a trained mediator!!

© Lili Hunter Consulting Ltd

Michael Gibbons Review 2007“Rather than encouraging early resolution, the procedures have led to

the use of formal processes to deal with problems that could have been resolved informally. This means that problems escalate, taking up more management time. Employees find themselves in unnecessarily formal and stressful processes, which can create the expectation that the dispute will end in a tribunal. The complexity of the procedures and the penalties for failing to follow them mean that both employers and employees have tended to seek external advice earlier.”


Gibbons Recommended:-

1. Employers to promote early resolution as a management tool and

provide advice, guidance & training to empower managers to

resolve disputes



2. Employers to consider encouraging the use of mediation as a

standard provision in contracts of employment



3. Ensure managers are fully aware of the realities behind tribunal

cases and compromise agreements.



4. Where internal mediation is not successful, consider using

external third party mediators


Internal v’s External MediationLine manager training

Internal mediators – fully trained & CPD

Third party mediators (external)


What is Mediation?


Form of conflict resolution

Alternative to litigation

The third side

People have a tendency to adopt positions

Positions become entrenched

The Mediator’s Role

Independent perspectiveConfidential, non-threatening environmentListening skillsExploration of the issuesEmotions allowedFacilitation of creative solutionReality checkingImplementation planWin-win


A Mediator is NOT:-

A judge

A problem solver

Biased


Mediator’s Responsibilities

Fairness – equal air timeControl – but don’t dictateComplete ImpartialityDecision Making – parties onlyFuture FocusTime ManagementConfidentiality


Mediation v’s Negotiation


JUDGING

JUDGINGNEGOTIATING

MEDIATING

Positional BargainingStart with solution

Each party has own solution

Their solution doesn’t take account of the other person’s

interests

Offer & counter-offer

No complete winners


Positional BargainingThe pie is limited and I want the biggest piece

I win = you lose

We are opponents

Mine is the only right solution

I must stay on the attack

Concession = a sign of weakness


Interest Based BargainingPreservation of the relationship is the starting point

Developing the relationship

Discuss needs and interests jointly

Joint problem-solving


Interest Based BargainingThe pie is not limited

I win = you win

Needs of all parties addressed

Co-operative problem solving

Relationship is important

Lots of possible solutions

No loss of self-esteem


The Cost of ConflictCost of formal procedures – time & money

Decrease individual competence

Ineffective working relationships

Toxic / absent communication

Poor staff / team development

Any more?


Direct Benefits of Mediation

Reduces the cost of conflict – absence etc.

Reduces the need for litigation

Gets relationships “working”

Improves communications

Positive approach to conflict in future


Why do we have conflict?


environment

behaviours

beliefs & values

needs

I

Donald Taylor – 59 year old manager


I Have a strong work ethic

Needs Need to work with men so I can respect my colleagues & get the job done

Beliefs& Values

Women don’t perform as well because of children / female issues

Behaviours “dear” frustrated with women. No promotion, team discussion

Environment Male dominant

Sue Baker – 29 year old engineer


I Have a strong work ethic. Gender irrelevant

Needs Dignity at work. Job satisfaction & recognition

Beliefs& Values

I believe I can achieve the same as a man

Behaviours Offended by sexist behaviour. Withdrawn. Doesn’t co-operate

Environment Male dominant

Donald & SueDo they have any common goals?

How might we help them?


Practical Mediation

Skills & Techniques


Non-Judgmental – Open Minded

No judgment

Even if discrimination!

Risk bias if you judge


Example

Tom: That Polish git is just making a fuss over nothing. Typical foreigner! Why do they always have to make such a huge fuss when you’re just trying to keep the atmosphere light? I wouldn’t mind if he was up to the same standard as the rest of us.


Example

Mediator: Tom I can see you’re angry at Stefan. Is there something specific about his performance that you are unhappy with? Tell me more about that.


Listening ActivelyBe patient & attentive

Show empathy

Listen between the lines

Check understanding


Emotional Shorthand

When angry/upset we all:-

a) say things we don’t mean

and

b) Mean things we don’t say

=> You have to find the true meaning behind the communication!


Reframing


Take negative comment

Strip away toxic/unproductive language

Focus on interests and essential message

Feedback in positive format

Why Reframe?

There is an element of truth

Find the underlying interest

People want a constructive response to negative comments

Needs met = more productive communication


THE MEDIATION PROCESS


Outline of a Mediation


Individual private session

Planning

Joint meeting

Facilitated agreement

Flexibility

Individual MeetingsConfidentialityNo recordExplain mediative approachListenDemonstrate understandingTrust


Funnel!Gather informationExploreFocusReframeHelp them see the other sideIdentify the interests Identify the problemReassure re. process


Joint MeetingsVenueSet up?Who goes first? – opening statementsWhat are you going to say?ControlSafe environmentEqualityFlexibility


Solution Stage – Party Behaviour


The Parties - Early stages The Parties - Solution Stages

Exchanging information, feelings, perceptions

Defining the issues and the problems without emotive, personalised language and without value judgements

Talking about the problem Exploring solutions

Past Future

Being heard through the mediator Talking directly

Solution Stage – Mediator Behaviour


Mediator - Early stages Mediator - Solution Stages

Central to the process – acts as a filter. Convey useful information and filter out value judgements.

On the edge of the process – facilitating the parties discussion rather than leading it.

Restraining parties from destructive communication based on the past

Encouraging forward-looking

Directing the parties to work to a structure

Encouraging a more dynamic interchange

During Joint SessionsReinforce the purpose of the mediation

Give some direction at the outset as to format

Stay aware of your body language and everyone else's

Check they are listening to each other

Comfort and progress

Positive reinforcement & encouragement


Generating OptionsBob what do you need from Jane on the first issue?

What might it be like if..?

What can you offer Jane to help her give you what you would like on this issue?


Assessing OptionsRanking?

Reality testing

Exploration & explanation of options

Remind parties of their interests


AGREEMENT

Can be in writing, but not essential

Who needs to know?

Confidentiality extended?

Settlement or plan for change


mediation at work employment law advice workplace mediation training project management

Documents

internal mediation

use of mediation

workwhy mediation

michael gibbons review

external advice

solutioneach party

trained mediator

early resolution