When is a Workplace Mediation the Right Option?

In the heat of the moment, often people who feel aggrieved in the workplace want to bring in lawyers right away. The reality of litigation is that it is time-consuming, expensive and does not always deliver a desired outcome. Most workplace disputes can be resolved amicably through workplace mediation, but it is an often-overlooked option.

There are alternative dispute resolution choices that are not only effective, but will save you time and money. One way to resolve workplace disputes is through mediation which encourages open negotiation, rather than pitting one party against the other in court or tribunal.

What is Workplace Mediation?

Mediation is a recognised, and often the preferable, means of dispute resolution. So, what is mediation? The Federal Court defines mediation as “a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties.”

This definition clearly explains the process of workplace mediation as well. In the hands of a skilled mediator, the dispute resolution procedure is uncomplicated and aims to resolve any differences of opinion in the workplace justly and effectively. All parties are allowed to openly state their case and also meet confidentially with the mediator.

The focus of workplace mediation is on showing respect to all parties involved in a dispute, while encouraging discussion to find and consider options to solve the matter to the benefit of everyone involved.

How is the meditation process conducted?

There are two options available:

1. Bring in an external mediator.
2. Appoint an internal mediator.

It is the responsibility of management to ensure that the mediator is unbiased and impartial for the process to be valid. An external mediator will almost certainly conduct a fair and transparent resolution process; however, an internal mediator might struggle if they do not have the proper training or have real or perceived biases towards either of the parties involved.

Before mediation, it is important that all parties thoroughly prepare in order to get their point across successfully. Here are a few tips:

• Understand the core issues of the dispute and exclude all irrelevant digressions.
• Review the contract of employment and any other agreements related to the dispute.
• Research state, territory and federal labour law entitlements.
• Prepare a file that has all documents and correspondence readily at hand.
• Discuss the issue with a knowledgeable third party who can guide them through the process without emotion.
• Consider solutions that will be acceptable and will benefit both parties.
• Enter into workplace mediation willingly and with an open mind.
• Understand that the mediator does not decide on the outcome; it must be a mutual decision reached by the parties who are a party to the dispute.
• If a decision is reached, the mediator can assist both parties in drafting an agreement that reflects the points agreed to by both parties during the mediation session. Once the agreement is signed by the parties, it can be legally binding.

When is mediation the right option?

Workplace mediation should be your first option when the dispute is not a direct or serious transgression of labour legislation or company policy. Unresolved personal issues can quickly get out of hand and negatively impact the work environment, productivity, and spill over to adversely affect staff who are not involved. These can be disputes between two employees, an employee and management, or between managers.

Usually, these situations quickly become emotionally-charged and soon permeate through the workplace with negativity. Obviously this is a bad outcome for organisations, and the problem must be addressed swiftly to restore balance in the workplace.

Examples of disputes that can potentially be resolved through mediation include:

• All forms of bullying, including insults, shouting and setting unattainable deadlines.
• All forms of discrimination, including sexual harassment and intolerance of diversity.
• A clash of personalities based on personal motivation or a cultural divide.
• Resistance to change in work processes or policies and procedures.

Why should organisations consider mediation?

Apart from a prompt resolution and cost savings, unresolved disputes can do damage to your organisation’s brand and its culture, it can also result in excellent staff resigning, and impact on the credibility of management. It is in the interest of any organisation to get workplace disputes resolved amicably and as soon as they surface.

The benefits of workplace mediation include:

• It provides a safe and confidential environment for parties in dispute to express their grievances.
• It allows the party who feels ‘injured’ to make an impact statement to those concerned and, in doing so, opportunity to be heard.
• It gives the accused party an opportunity to state their side of the story and/or consider the repercussions of their actions.
• It opens the floor for negotiation, which is not be possible if either party believes they are not being heard.
• It breaks down barriers to open communication between parties in dispute, such as language and power imbalance.
• It empowers both parties by allowing negotiation and encouraging independent decisions between them.
• It soothes emotions by encouraging collaboration based on seeing the issue from each other’s perspective.
• If mediation can resolve the dispute, it improves interpersonal relationships within the workplace and builds mutual trust between parties.

Internal or external mediation; which is best?

Depending on the size of the organisation, internal mediation may or may not be an option. In smaller organisations, it might be a challenge to appoint an unbiased, impartial mediator who is also an employee or part of the management team.

Biased decisions can easily land you on the wrong side of labour law and see your organisation being dragged before the Fair Work Ombudsman or entangled in costly labour court proceedings. Bringing in an external mediator, such as iHR Australia, will ensure the matter is resolved fairly and within the parameters of labour law.

If you are a big organisation, however, you can train representatives from different divisions to act as mediators across departments. Appropriate training is essential because mediators must follow a structured step-by-step meditation process, be up to date with legislation, and able to design a mediation plan for each case. iHR Australia offers workplace mediation skills training that will ensure internal mediators achieve good outcomes for all parties involved in disputes. Further, iHR Australia can also assist your organisation to refine policies and procedures, improve communication channels, and make recommendations to prevent similar disputes from occurring in the future.