In recent months at Mediate Ireland we have seen a dramatic increase in the number of employment, workplace, management and HR related mediation’s that we have undertaken. This is probably as a result of the significant delays experienced in progressing a case through a Rights Commissioner and the Labour Relations Commission, which in most cases can be as long as 18 months. When asked why they went to mediation, in addition to the lack of any delay, the other main reason given by the parties is the confidentially gained by using a private mediation company.
The Government and the Judiciary are highlighting the benefits of mediation and the integral role it now plays in the Irish Legal System. Mr Justice Michael Peart of the High Court recently made some highly controversial statements in relation to the Irish Legal system and the benefits of mediation to the parties.
Workplace / HR Mediation’s a Unique Approach
Workplace / HR mediation’s require a very different and unique approach from what would be a normal “Commercial Mediation”. The most striking difference is that most mediation’s are carried out while the parties have a continuing employment relationship and may have to work alongside each other on a daily basis. This is why speed of resolution is of prime importance. It has been said that all conflicts at work are the sounds of the system cracking – but also, more positively, that these cracks have the potential to let in the light.
Impartially of the Mediator
One of the biggest differences in Workplace mediation is that the Employer / Company will be paying for the mediation and this can cause perceptions of a lack of Impartially on behalf of the Mediator. It might be perceived by the parties that the Mediator is working for the “benefit of the Company”. This perception can be there whether the dispute is between employees or between the company and the employee. In a lot of cases the company may have a particular solution to the problem that the feel most comfortable with based on the information they have prior to the mediation. During the mediation and because of the absolute confidential nature of the process the mediator may find out very different information leading to a much more satisfactory resolution to the dispute then first envisaged.
The impartiality and independence of the mediator must be protected at all times in the process. This is the key as to why the mediation process is so successful. More that 8 out of 10 mediation’s that Mediate Ireland have undertaken have been successful. It is critical that parties trust the mediator and that they are not seen to be “doing the work of the employer” or “taking the side of a particular employee”.
The importance of a Mediation Case Manager
To protect this impartially it is best that all communications with the Mediator or Mediation Company are handled by a Case Manager. In most cases the Case Manager is an experienced Mediator, however he/she would not be assigned to this particular case. An important benefit of the case manager’s initial meetings with individuals may well be to gauge their level of commitment to the process, and answer any questions the parties have in relation to the Mediation Day. These meetings also address the interplay with grievance and disciplinary procedures and at what stage the dispute is at in the internal company procedures. When employees are required to engage in mediation as an outcome from such procedures, the extent to which mediation remains a truly voluntary process may need to be addressed. Even if participation is a requirement, no-one should say, agree or do anything in mediation other than voluntarily.
Who should attend the Employment Mediation
One of the key factors that arise out of the pre-mediation meetings with the case manager is who should attend the mediation on the day. This is vital as all key decisions makers, with the required authority, must be present if a resolution is to achieved on the day. A mediation is not an endless talking shop, the whole purpose of the mediation is to reach a written agreement which has been agreed voluntarily by all parties involved. If it turns out in the pre-mediation meetings that the dispute involves a greater number of people, then the structure of the mediation may need to be adjusted to facilitate the particular dispute. It is always foremost in the mind of the case manager that by consulting with additional people the dispute is not escalated as a result and this is where an experienced case manager is very vital.
Issues of Confidentially in Employment Mediation
Confidentially of the mediation is where we get most concerns and questions about. Because an employer or company is paying for the mediation a lot of the time we are requested to produce a report for their consideration. This can have major implications during the mediation as everything that is discussed between the mediator and a party is absolutely confidential from all other parties including the employer. The mediator will only divulge information with the agreement of the party to other parties. Generally this is never an issue when the mediation is successful as a written agreement is produced and agreed by all parties. However if a mediation is unsuccessful, a summary of the dispute and issues may be produced as long as all parties agree. The key is to discuss these issues at the outset and to keep them in mind throughout, always seeking the agreement of those involved at each step.
Employment, HR, Workplace Mediation’s must be carefully set up, with careful consideration given and in consultation with all parties involved. It is vitally important that the mediation is sensitively tailored to the situation’s requirements and circumstances, while at all times preserving the impartiality of the mediator and the integrity of the process. As you can now appreciate each employment dispute is unique and needs extensive planning if it is to be successful.