Mediation is a way to resolve disputes without filing a “formal complaint” or lawsuit. It can provide a non-public forum in which the disputing parties can discuss the dispute, feel that they are being heard, gain insight and understanding into the perspective of the other party, and work together in exploring and developing possible ways towards resolving the dispute.
WHY MEDIATION IN THE WORKPLACE
• Recognition and Understanding. When employees feel they are being heard and have the opportunity to hear and understand the other party’s point of view, the chance for an amicable resolution is heightened.
• Self-Empowerment. The workplace is an environment in which employees feel they are normally being told what to do – mediation offers employees the opportunity to have input in the decision on how to resolve a situation.
• Timeliness and Speed. Mediation can take place quickly and within a short period of time (often just a few hours). In contrast, a formal complaint filed with a regulatory agency or court can take years to resolve.
• Cost Effective. Mediation is cost effective not only financially but also in human capital and time. Mediator fees are a fraction of the costs of the legal fees associated with a protracted conflict and litigation.
• Confidential. Once a lawsuit is filed it becomes a matter of public record while mediations, by their very nature and contract, are confidential, regardless if a mediation takes place prior to or after a lawsuit has been filed. In California, communications during mediation are inadmissible and are confidential as defined under the Evidence Code.
• Durability of the Mediation Agreement. Studies have shown that when disputing parties voluntarily enter into a mediation agreement they are far more likely to adhere to the terms of the mediation agreement since they helped draft and design the agreement rather than when a judgment is imposed by a court or regulatory agency.
TYPES OF WORKPLACE ISSUES WHERE MEDIATION CAN REALLY HELP:5
• Problems between employees. Even the simplest of problems between employees, if left unresolved, can fester and grow into much larger issues that not only negatively affect the employees involved but also impact others around them. Employers that provide mediation as an avenue that employees can use to resolve their disputes in a confidential, impartial and nonjudgmental way serves to empower employees to positively change their workplace interactions.
• Performance Issues. Employee performance can deteriorate for an array of reasons: communication style, personal interactions, misperceptions and misunderstanding regarding roles and responsibilities, etc. Mediation can offer an alternative, and likely more productive, forum in which to discuss these difficult issues outside of the standard performance review process.
• Harassment Complaints. Utilizing mediation as the first step in dealing with harassment complaints can be very helpful, especially if the complaint is based on a misperception or misunderstanding of what is acceptable workplace behavior. Mediation can serve to open communication between the parties, help clarify what is acceptable workplace behavior, and foster a healthier understanding between co-workers.
• Termination. A termination is always a difficult situation for the employee in question, the employer, and often other employees. Mediation can help the employee feel they have fully shared their feelings and concerns regarding the termination in a circumstance in which the power lies ultimately with the employer. Mediation can offer an opportunity for a “peaceful parting” and allay employers’ worries of potential litigation.
WHY EMPLOYERS SHOULD CONSIDER ADDING MEDIATION TO THEIR EMPLOYEE RELATIONS TOOL KIT.
At a minimum, the benefit of using mediation as a first step in addressing and resolving workplace disputes gives each party a better understanding of the issues and problems of the dispute in a confidential, impartial, and non-public venue. Mediation offers the parties the opportunity to resolve the dispute quickly, and it empowers each party by providing them a voice and role in determining the resolution. Even if the mediation does not result in an agreement and a lawsuit ensues the parties will have a good understanding of the nature of the dispute and the facts surrounding it.
Mediations that do lead to an agreement have endless benefits that include a positive resolution to a workplace dispute in a quick, cost effective manner. Mediation also has the long lasting effect of providing the employees who participate in the mediation the conflict resolution tools that were utilized in the mediation to resolve future disputes.
At its core mediation is a confidential and voluntary process in which the parties have an active role in the control and resolution of the dispute. When an agreement is finalized, it allows the parties to move forward with a sense of completion, of ownership in the outcome, and, most importantly, that they are winners at resolving their problems.6 This is an especially meaningful experience in the workplace since employees often feel that they do not hold a significant amount of power.
In short, Workplace Mediation is a confidential, informal and voluntary process whereby an impartial mediator facilitates communication between those in dispute to assist them in developing mutually acceptable agreements to improve their future working relationship. Mediation can be effective in both union and non-union settings and at all levels of the organization.
8th Asian Pacific Mediation Forum
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