Be prepared to give on some issues and be honest to ensure success in mediation
The courts are becoming increasingly burdened with more cases than can reasonably be handled. Issues between parties are becoming more complex and, more than ever before, courts and tribunals try to determine if the parties in conflict have attempted mediation before they are allowed to present their case. Employers and employees, or unions, need to be ready and willing to embark on this joint process.
Although the mediation process can solve the problem or conflict, success in mediation depends a lot on the parties’ understanding about the process and the purpose for the mediation.
Mediators generally enter a mediation process by instantly trying to assess the parties and where the source of power is in the respective parties. This helps a mediator throughout the process when she needs to obtain support or agreement from one or the other group as they work towards a solution.
Many employers and HR professionals expect the mediator, on her own, will resolve the conflict. Often one party will outline the issue to the mediator and expect the mediator to advocate on its behalf to the other party.
There is a fundamental problem with this concept. The conflict belongs to the parties, not the mediator. A mediator is a facilitator who is there to assist the parties in reaching an agreement. The mediator is not an advocate for either party. If one party tries to co-opt a mediator to its side, it can backfire. Most mediators are well experienced in the labour relations field and quickly know if they are being manipulated.
The potential outcome and the format for the mediation vary depending on who the mediator is. The type of conflict should be fitted to the personality and style of the mediator the parties choose or have been assigned to.
Entering the mediation process, an employer needs to think about what it wants. Do both parties still have the ability to communicate or are they at complete odds and prefer not to even be in the same room? Is the employer prepared to modify its position or does it expect the other party to make all the concessions? Is the employer prepared to work with the mediator and give her the necessary information to allow the process to work or does the employer intend to hide certain facts?
If an employer is going to mediation because it has been party to an application to a legislated board that will assign a mediator, a lot depends on the knowledge and capability of the individual who is assigning the mediator. To ensure that individual makes the most appropriate decision, it’s important to ask the following questions and share the answers with the person doing the assigning:
• Do you need a mediator with a great deal of patience?
• Do you need a mediator who will push you to the edge to make you or the other party decide?
• Do you need a mediator who will work with you to try to come up with various solutions and provide some ideas for you or are you looking to merely give direction to a mediator so she can present your position to the other party?
• Are you open-minded?
Before the mediation process starts, there are some things to be aware of and to prepare for:
• Know what the issues are, be prepared to give that list to the mediator and be clear on which of those issues must be addressed and which can be dropped (and be prepared to drop some).
• Decide who will be part of the mediation team and include someone with decision-making powers so the process doesn’t have to be stopped in order to get approval on alternate solutions. Without such a person on the team, the other party will wonder whether there is honest intent to come to a resolution.
• Talk to the person assigning the mediator to provide enough information so she can assign the most appropriate mediator for the situation and the personalities of the mediation team.
• Be honest with the mediator about the issues and concerns. The mediator is there to try to facilitate the relationship between the two parties so there can be a mutual resolution.
• Be prepared to spend whatever time is necessary at the mediation hearings since the meetings often take more time than expected.
Barbara Sharp is the owner of Solution Generation Group, which provides conflict resolution and HR solutions in Vancouver. She can be reached at [email protected].