The Role of mediation in the workplace

Peninsula Team

June 29 2012

Mediation is a method of dispute resolution which is becoming ever more popular in every walk of Irish life. Recently a draft scheme for a Mediation Bill was introduced by the Oireachtas which has demonstrated the hunger amongst Government, professionals and practitioners alike to ensure dispute litigation is not the only format for resolving employment disputes in Ireland. While mediation is now seen as a viable alternative to litigation, it has yet to be tested on a wide scale and is currently treated with some trepidation when mentioned in the workplace. Employers should, however, take a look at the mediation option as it also seems that it may play a more official part in employment disputes going forward as Minister Bruton is seeking to formally introduce the practice into the Irish employment litigation system.
Background Mediation can be defined as “a process in which an impartial and independent third party facilitates communication and negotiation and promotes voluntary decision-making by the parties to a dispute to assist them in reaching a mutually acceptable solution”. The process of mediation is entered into by the parties on a voluntary, confidential and consensual basis. The process is non-binding until a resolution is found and agreed. Essentially, either party can walk away at any time during the process making it focused on the parties to the dispute and not the need to have a win/lose outcome. The way in which mediation is set out is to encourage a party led resolution which means collaborative intent and practical resolutions. The mediation process is generally broken down into a number of stages which include a pre-mediation meeting with both parties, a phase of storytelling and associated listening by both parties, a framing or referencing phase which allows context to be placed on the issues at hand, a solution finding phase and finally a resolution or agreement. Costs The process of litigation is often seen as the “only show in town”when attempting to address any outstanding dispute. Not only is litigation based on a win/lose structure, it is also often extremely stressful for both parties and extremely costly in terms of time and money. While mediation costs may vary, the cost of a mediation process is relatively definitive and not as ambiguous as the potential costs involved when a party is involved in a contentious litigation case. Often costs can rise for both employers and employees just to “win” a case. The focus in mediation is to reach a collaborative resolution that is practical and workable for all involved.  There is a fundamental difference in process, aim and cost between the litigation and mediation. The one element of mediation which can often cause anxiety for parties is the focus on emotion and the need to open up to their fellow disputant. However, a skilled mediator will have the ability to extract this from the parties thus obtaining movement from entrenched positions and speeding up the resolution process with the extremely positive outcome of reduced costs. Employment Context Mediation has been recognised as a suitable method of dispute resolution in the workplace.  Mediation and its use in the workplace can be split into two main categories, mediation during employment (usually personality clashes or communication issues can be addressed as this stage) and mediation post-employment when formal claims are made by an employee, such as a claim of unequal treatment on the grounds of discrimination. The use of mediation in the workplace can hold huge benefits for employees and managers alike. Benefits include a greater understanding of values, clearer communication, increased productivity and professional working relationships where there may have been a breakdown in the past. In 2005 the Labour Relations Commission (LRC) established a pilot Workplace Mediation Service in response to the need to have an informal and confidential dispute resolution service. However, knowledge of the service is not widespread. With the recent workplace dispute resolution reform programme now in its initial stages there is a new pilot scheme for 2012 which focuses on early resolution of workplace disputes when claims are taken by employees. While not mediation in its purest form, a dispute is assigned to a Case Resolution Officer who will attempt to resolve the issue at hand in agreement with both parties. Benefits Mediation is voluntary and not a process of enforced participation. Parties retain control of the issues at hand and most importantly decide the outcome of the process. The whole concept of a self-driven process with the resolution coming from the parties themselves is enlightening and is clearly a huge benefit over that of litigation. Amongst others, parties retain flexibility to decide the timelines involved, the process is speedy, cost-effective and non-adversarial. The aim of the mediation process is to collaborate in a professional manner not to initiate a win/lose situation where invariably both parties are left with bad feelings, animosity and huge legal fees. Conclusion When conflict arises in the workplace, a decision has to be taken as to how the issue will be addressed. Identification of the issues will allow the parties to decide which steps to take are the best. The initial step of informal communication can often solve disputes especially when the management involved are equipped with the skills to quantify the reality of many of the issues which can often be blown out of proportion. The restoration of relations is a key function of mediation and it must be seen as a real alternative to litigation. It is up to the managers and business owners of Ireland to embrace this form of dispute resolution so that it becomes a culturally acceptable norm. Employers should seek advice from Peninsula Business Services when faced with a dispute in the workplace. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.    

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