Mediation is typically a voluntary process. In this article ‘mediation’ refers to any method of conflict resolution which involves a facilitator and 2 or more participants for the purpose of resolving conflict.
In the workplace, mediation may be one of a number of recommendations to assist with resolving conflict or disagreements and to help with better understanding the views of the employees involved.
How to handle expectations about employee participation in mediation
Before focusing on how to ‘fix’ the workplace relationship it is worth taking a moment to consider choices around employee participation in mediation. Here are some suggestions on what to look for:
- Check your organisation’s policies or enterprise agreements for any clauses that encourage or require an employee to participate in mediation.
- It is important to note that mediation is not a forced process, nor does it provide for a guarantee of achieving agreement.
- Consider psychosocial safety and work health and safety duties.
- An employee may have safety concerns around a perceived or real power imbalance between the participants.
- They may have fears of experiencing intimidation or retaliation.
- Matters around bullying, harassment or discrimination are more likely to be situations in which an employee will hold genuine concerns and mediation should not compromise an employee’s safety.
- Encouraging participation in mediation.
- Assess if the conflict or disagreement is suitable for mediation before you get started, with reference to the issues above.
- Make information about the process available to the employees.
- Where trust is low, have variations such as shuttle mediation [where the participants are kept separate and the mediator acts as the communicator] been explored?
- Help them to consider their options for resolving the issue if they don’t participate.
- Determine the skills set of the mediator and check to ensure they are seen as being neutral
- Dispute resolution pathways such as those in the Fair Work Act encourage early interventions, however they do not make participation in mediation mandatory.
Will your employee’s decision not to proceed with mediation be respected?
Participation in mediation should not be forced. The balance sits with encouraging early and voluntary participation while respecting an employee’s rights to decline mediation, where appropriate.
In circumstances where the offer of mediation has been made it is important that the employees involved are aware of their right to decide. When potential mediation processes are managed in this way, it will create confidence in your organisation’s commitment to exploring reasonable attempts to resolve the workplace conflict or dispute.
There are likely to be some organisational learnings from each attempt at using mediation. These learnings may strengthen future early interventions and preventative strategies such as increasing training in conflict resolution, improving access to raising concerns or monitoring for emerging signs of a dysfunctional team.
If this is your situation, WEIR can assist you with introducing your employees to mediation and managing their expectations.