As a workplace mediator over the years I've had numerous conversations with HR colleagues about mediation and inevitably there are certain questions I'm asked which crop up quite frequently. So I thought it might be helpful to pull together the most commonly asked questions and provide some answers.
1. What do we do if someone doesn’t want to engage with mediation?
It’s not at all surprising that employees might be reluctant when mediation is suggested. It is hardly an appealing thought to sit down and have a conversation with someone who you are in conflict with. Typical responses might be:
she’s bullying me – why can’t you just get her to stop
he’s just annoyed as I gave him a bad performance review – he can’t take feedback
it’s not worth it, it will never work
One of the reasons mediation is so successful is that people go into it voluntarily so it is important we don’t dismiss someone’s concerns and pressurise them into participating. Instead we should:
Make sure they fully understand what mediation is, how it works and what the mediators role is. People will probably have preconceived ideas based on limited information so they need to be given the correct information.
Take time to understand what the objections are and address them individually. There may be a simple solution – for instance, if someone finds it impossible to meet face to face then having an online mediation may be an acceptable solution.
Consider the options if they don’t mediate. Talking through the alternatives will help them understand whether mediation is actually more attractive than the other options. For instance they may want to try the formal route – but they need to recognise they may not get the outcome they want and the relationship will be even more damaged. With mediation however they are able to determine the outcome themselves through agreement with the other person.
Discussing mediation with an employee is a tricky conversation. As a mediator I always offer to have a chat with an employee who is not convinced about doing mediation. I can often allay their fears – and it also gives them an opportunity to meet me and build trust that I will support them during the process.
2. What happens if someone doesn’t stick with the agreement?
This is a common concern and can often be used as an excuse not to mediate…’why would I do it if there is nothing stopping them repeating the behaviour that led to the issue?’'
It’s true that there is no legally binding commitment in a workplace mediation agreement – but that is not the intention. The agreement simply summarises what the people involved have committed to each other to help improve the relationship. It is in both their interests to make it work and that is why they usually stick with it.
Also I always make sure we include what I call the ‘failsafe mechanism’. I ask them to agree what they want to do in the future if either has an issue with the other – either relating specifically to a perceived breach of the agreement or a more general concern. This means that in future if either believes the other is not sticking with the agreement they already have an agreed process for addressing it. Normally this involves them meeting, raising their concerns, listening to each other’s perspective and agreeing a way forward.
Ultimately there is nothing stopping someone breaching the agreement, but in practice this does not often happen as the incentive to make it work is strong.
3. What happens if they can’t agree in the mediation?
Nobody is forced to agree anything in mediation – participants only agree if both are willing to do so. Often this means compromising in order to achieve the bigger objective of moving forward. Agreeing to mediate already demonstrates an openness to finding a way forward. This is why mediation is normally very successful – it’s quoted that 90% of workplace mediations result in an agreement.
At times though participants may struggle to agree. This is where the skill of the mediator is critical. A good mediator has a range of tools to ‘unblock’ the situation, such as focusing on the positive and summarising what has progress already made, taking a break to allow reflection and looking at possible outcomes if they can’t reach agreement. Considering consequences and impacts is particularly powerful to see that best chance of reaching an outcome with which participants are comfortable is to continue the mediation.
Ultimately if people can’t agree then the mediation can be halted, either temporarily or permanently. Most times they succeed, but even if they don’t, people come away with better understanding and the knowledge they have tried to resolve the issue.
4. How effective is mediation at achieving a lasting resolution?
This is difficult to evaluate as once a mediator has done the agreed follow up there is generally no contact with the mediation participants (though no news is normally good news!). As such the longer term outcome is mostly unknown. However, when I follow up with those who have been involved in mediation (normally a couple of months after the session) typically what they tell me is that they are making it work. Some say they haven’t referred to the Mediation Agreement again and they have just got on with it. This indicates that a key benefit of mediation is that it enables the participants to leave behind the issue that caused the conflict and move on. As such the detail of the Agreement is less relevant, the important thing is that they are able to have a professional working relationship with the other person again.
5. Does the mediator need industry / subject knowledge?
In short – no. In a workplace mediation the issues being addressed normally result from a relationship breakdown between the people involved. Which industry those people work in is irrelevant to the core issues at stake. So the mediator needs to be expert in mediating relationship conflicts between employees, not expert in financial services, construction or whichever industry the participants work in.
The only aspect where some industry could be helpful is to avoid getting lost in industry specific terminology etc. I can best illustrate this by my own experience. I started my mediation career when I was part of a major oil and gas organisation. The company used many acronyms and being aware of those acronyms meant I could follow what participants were talking about. What if I hadn’t known what they meant? It wouldn’t be a big issue – if I’m mediating and acronyms I don’t understand are used I might ask what they are, but only if I feel it is essential for me to know. Generally though, my advice would be to find a mediator who has good mediation experience rather than someone who has industry knowledge but less mediation experience.
6. Can we cut down the time it will take?
Normally I recommend that participants allow a full day for the mediation. They don’t always take a full day but even if we finish earlier, participants are likely to be quite drained so I suggest they don’t arrange anything else the same day. On occasions, thankfully rarely, I’ve been asked to finish in half a day, or even less. Normally I would resist this and instead find an alternative day when both participants are available for the full day. The reason is that we can never be sure how long a mediation will last. A mediator has control of the process but it depends on how open the participants are and how quickly they are able to move beyond focusing on the past to looking at finding a way forward.
There may be occasions when I can suggest that a half day could be appropriate. This would be after having spoken to the people involved and having established that both the issues were not complex and that participants were in a good place for wanting to find a way forward.
Generally though it is a good rule of thumb to assume a mediation will take a day.
7. When is the right time to mediate?
A simple answer would be the earlier the better! Most situations that I’ve mediated have started off with small incidents that over time have escalated as they have either not been addressed or have been mishandled. Once conflict has escalated and positions have become entrenched it is more difficult – but by no means impossible – to find a resolution.
What is difficult to assess though is what type of intervention is most useful at what point in the conflict – and indeed how do you decide what point the conflict has reached. In the very early stages employees should be able to find resolution themselves. Once it has escalated low level intervention from a manager or HR could help. For more complex situations a professional mediator is likely to be the best option. I co-wrote a book a couple of years ago intended as a tool to help HR and line managers identify what stage a conflict may have reached and the most appropriate intervention options. The ‘8 Stages of Workplace Conflict – and how best to resolve each stage’ can be downloaded for free from our website.
8. Why do we need a mediator – can’t we do it ourselves?
I’m a strong advocate of early intervention to resolve conflict – the earlier an issue is addressed the easier it is to resolve. As such, if a manager or their HR support can use a mediation style approach to nip issues in the bud, then I’m very much in favour. However, line managers often lack both the skills and incentive to manage conflict and whilst HR may have the skills they may not have the process and tools to go about it effectively.
In my view the ideal scenario is that you have a multi tiered approach. Employees should be encouraged to have their own ‘difficult conversations’ to address concerns with colleagues directly. Beyond this managers should be trained to facilitate conversations between team members to help them find their own solutions. HR too should be trained in basic mediation type skills so they can assist managers in nipping conflict in the bud. For more complex scenarios, or where greater independence is needed, an independent professional mediator can be used.
9. When is it not appropriate to use mediation?
Generally speaking if a workplace relationship has broken down and the people involved want to try to rebuild it then mediation is likely to be appropriate. Having said that there are a few scenarios where it might not be the best option. These would include situations:
Where a clear right / wrong answer is needed. An example would be if there is suspected criminal activity – clearly this needs to be dealt with before the relationship can be addressed.
Where a manager is using mediation to avoid addressing the issue themselves. It can seem an attractive option for a manager who is uncomfortable with conflict to bring in a mediator but they should be supporting the employees to resolve it themselves in the first instance.
Where the potential participants are not ready. This might be because one or both are too caught up in the past and not yet able to think about moving forward. Another example is where the mediator feels the mental health of a potential participant is not sufficiently robust and the mediation process could put them at risk.
Experienced mediators are normally willing to talk through potential cases and give a view as to whether mediation is likely to be appropriate.
10. Can the mediator share the output / give a report?
Only rarely have I been asked if I can give a report back to HR / Management after a mediation. My answer is that I’m happy to share anything that has been agreed with the participants that may be shared, but beyond that the content of the mediation meeting and individual discussions remains confidential. The principle of confidentiality is critical as it enables the participants to open up and feel comfortable to say things which they may wish to withhold if they felt it would be shared more widely.
In practice I find that most participants are quite willing to share their Mediation Agreement with appropriate people, such as the referring HR manager and relevant line management. It makes sense that those within the company who will be involved in the ongoing support of the participants are aware of what they have agreed. I also have a debrief session with the referrer where I share the agreement (provided it has been allowed), any other feedback (again that has been agreed with participants) and also general advice on how to support mediation participants going forward.
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