Mediation

Recent legislation regarding psychosocial hazards includes an onus on employers to ensure conflicts in the workplace do not remain unresolved, but are proactively addressed.

Throughout my career, I have been in leadership roles in which I have performed the role of informal (and untrained) negotiator, mediator or counsellor. Even though this type of work was never directly within my professional remit, I found that I gained great satisfaction from achieving outcomes that were beneficial for the parties involved, and the organisation more broadly.

With this in mind, I became a registered mediator with the Australian Mediator Standards Board through the National Mediator Accreditation System (NMAS). This conflict resolution qualification complements my work as a consultant in communications and stakeholder engagement, and as a non-executive Board Director.

“Peace is not the absence of conflict, but the ability to cope with it.”

Mahatma Gandhi

Conflict in the workplace continues to be a challenge for many organisations, and can have a detrimental effect on culture, productivity, employee mental health, turnover and absenteeism, and risk management. Various studies have estimated the cost of workplace conflicts in Australia to be more than $10 billion per annum, with managers spending up to 30% of their time dealing with disputes. As of 1 April 2023, federal legislation has mandated that employers manage psychosocial hazards under the Work Health and Safety Act 2011.

Definition of workplace mediation

Mediation is a form of alternative dispute resolution that aims to resolve conflicts in the workplace before they become inflamed or escalate to an often expensive, legal and/or damaging outcome.

The Mediator Standards Board defines mediation as:

A process in which the participants, with the support of the mediator, identify issues, develop options, consider alternatives and make decisions about future actions and outcomes. The mediator acts as a third party to support participants to reach their own decision.

Mediation is one type of alternative dispute resolution; others are arbitration and conciliation. I practice facilitative mediation, in which I assist parties to identify issues and reach agreement about the dispute. In general, I do not have an advisory or determinative role in the content of the dispute, but certainly advise or determine the process of resolution.

The mediator's role

As a mediator, my role is a neutral, non-judgmental one. I do not give advice or recommendations, but rather provide a sounding board for the disputing parties. I provide them with a framework for sorting out the issues at hand, so that they can reach agreement on a productive way to move forward by the end of the mediation session.

I often come into an organisation after the parties have tried to resolve the conflict themselves, or after their manager has attempted resolution. However, sometimes neither the parties nor management have tried to resolve matters, preferring to wait for an objective third party to assist.

Through my facilitation, I obtain the history of the conflict and the nature of the issues that have brought the parties to the mediation table, but more importantly I focus on the future and what might work better for everyone involved.

During a mediation session, participants generally go through the following steps:

Communicate with each other (comments are directed to each other, not to me), exchange information and seek understanding
Identify, clarity and explore interests, issues and underlying needs
Consider their alternatives
Generate and evaluate options
Negotiate with each other
Reach and make their own decisions

It is important to note that while I have control of the process, the parties have control of the content. At the end of a mediation, I provide a summary of the agreement and commitments made by the parties, reminding them that while the agreement is not legally binding, it is a moral reminder of the discussions that occurred.

It is common that workplace mediations take between half a day and a full day, depending on the nature of the conflict. In some instances, mediation can extend over a number of days.

A typical scenario involves the mediator working individually with each party to gain their story, context and the issues at hand, then bringing the parties together to mediate/negotiate. There are specific techniques utilised in this process.

Benefits of mediation

Mediation can help to resolve conflicts stemming from:

Misunderstandings
Challenging personality types or clashes
Expectations that are not met
Lack of skills
Conflict of interests or values
Leadership styles or issues
Lack of resources
Disregard for others' feelings
Unkind intentions
Disputes over policies or procedures

Mediation can result in:

Improved communication between disputing parties
Empowerment of the individuals to tell their story and be heard
An airing of the disagreements and 'elephants in the room' in a safe and respectful place
A practical agreement on how to move forward productively and within set timeframes
An end to the conflict

An external mediator brings to the table: independence, neutrality, objectivity, safe and respectful feedback, and fast resolution.

Mediation and counselling are not the same thing - mediation is about resolving immediate conflicts, whereas counselling is about changing thoughts, feelings and behaviours over time. Changes such as these might well be achieved as a consequence of mediation, but are not the central goal.

Key principles of mediation

The disputing parties need to be there of their own free will, and with the blessing of their employer
Solutions to the problems are generated by the disputing parties, ensuring greater ownership than if solutions are enforced by a third party
All information provided to the mediator is confidential, except for specific instances including when information is required to be provided by law, or where it is reasonably considered necessary to divulge information in order to prevent an actual or potential threat to human life or safety
Ground rules are set - for example, no interruptions, talking respectfully, listening to each other, neutrality of mediator, confidentiality of proceedings
Agreements developed at the end are practical and have timeframes

Regulations governing mediation in Australia

The Practice Standards of the Mediator Standards Board apply to NMAS accredited mediators. These specify the minimum practice and competency requirements of a NMAS accredited mediator, inform participants about what to expect of the mediation process and are aligned with the Approval Standards, of which an NMAS accredited mediator must also comply.

There is currently no comprehensive legal framework for alternative dispute resolution in Australia, however it does fall within many laws under different Australian jurisdictions.

When mediation doesn't work

Happily, mediation works most of the time in workplace conflicts, however should the parties fail to reach initial agreement through mediation, there are other avenues that can be pursued, including:

Continuing mediation until resolution is reached
Seeking legal advice so that parties can be informed about taking legal routes such as litigation
Exploring other alternative dispute resolution options such as arbitration or conciliation