The Mediation Process - Workplace
Mediation is an effective, efficient, and economic voluntary process which helps to deliver resolution in workplace disputes and conflicts.
The key to mediation is that the parties arrive at their own solution with the guidance and assistance of the Mediator. The Mediator is neither a judge nor an arbitrator and does not adjudicate or hand down a decision in relation to a dispute. Rather, a settlement is reached by allowing parties in dispute to clarify and explore issues in a non-adversarial channel. It is the neutral Mediator’s expertise and skills which facilitate the possibility of settlement.
Confidentiality before, during and after the process is central to the principles of mediation. A process that works Without Prejudice and incorporates flexibility, mediation offers parties a means of achieving agreement without public or future disclosure of information. Confidentiality of all discussions and exchanges during the mediation process is legally binding.
Mediation focuses on finding agreed resolution for all involved parties. This emphasis allows parties to drive the negotiations towards an agreed solution, facilitated by an experienced mediator.
For more information on workplace disputes see books in Resources
Stage 1: Commencement of Workplace mediation
- Either the employer or one party to a dispute refers the matter to mediation i.e. contacts Karen Erwin (EMS) whose role it is to assist in dispute resolution
- EMS contact the other party (or parties) to the dispute to discuss the possibility of mediation
- If all parties agree to mediate the process moves to stage 2. , a mediation agreement is signed which governs the process
Stage 2: Appointment of Mediator
- The employer and the parties agree on a Mediator
- In a workplace dispute the Mediator agrees terms of reference with the company including informing the company that the Mediaotr will not be able to divulge any details from the content of the mediation except with the agreement of the parties.
- Where individuals only are involved terms of reference will be agreed with both.
- A date, time and venue is fixed for pre mediation meetings to take place. These are held separately with each party and are to explain the process and to answer any queries. Also at these meetings the parties in the dispute tell their story to the Mediator.
- The Mediator gives the parties the draft Agreement to Mediate or groundrules and deals with any queries.
- The parties are asked if they want a supporter with them - maybe a lawyer or union official. the role of the supporter is not to be as a representative but to bein the same room as the mediation and to advice in private meetings. They take no active part in the mediation.
- The parties are each entitled to nominate a Confidante - this person is not in the mediation but is an agreed person with whom the party may discuss the mediation. They are bound by confidentiality. Usually the confidante is a spouse or friend of the party. They may not be a work colleague.
Stage 3: Preparation for Mediation
- Each party may submit a position statement outlining the matters in dispute.
- The parties may contact the Mediator to resolve any outsatnding queries.
- As a rule the Mediator does not get any documents relating to the case.
Stage 4: Mediation
- EMS usually book two rooms in a local hotel so that each party can have their own space for the mediation.
- The mediation starts usually with the Mediator explaining again the procedure to both parties in joint session and getting each person present in the room to sign the Agreement to Mediate. Sometimes parties don't want to be in the same room ( at least at the beginning) and this can be accomodated.
- In the same joint session the parties have the opportunity to outline their side of the dispute without interruption
- The parties usually stay in joint session but the Mediator may wish to speak to the parties separately at times during the mediaton.
- Everything said in these private sessions is confidential and can only be revealed to the other party if there is express agreement.
- The Mediator, depending on the circumstances, may continue with private sessionsor may have joint sessions or may have sessions with the party's supporters or advisors. The flexibility of the process means there are no hard and fast rules on how resolution is arrived at.
Stage 5: Agreement
- On reaching agreement, the terms are written down, the agreement is signed by all of the parties and any supporters and advisors present as well as by the Mediator.
- If agreement is not reached then there may be a joint session of the parties where the mediator sets out issues where agreement has and has not been reached.
- Usually a review meeting is built into the agreement to enable the parties to know that there is a fall back if needed.
Stage 6: Moving on from Mediation
- If the parties wish, EMS can help to oversee the Settlement Agreement or can attend a review meeting.
- EMS returns any documents to the parties, retaining the original agreement – ensuring that the parties each have a copy of it.
- None of the people connected with the mediation may reveal any confidential information from the mediation except to the agreed confidante or as agreed in the mediation.
- The parties and their advisors are asked to complete feedback forms on the performances of EMS and the mediator.