The Power of the Process – Mediation in the workplace

Emma: What made you want to become a mediator?

Anne-Marie: I have been specialising in employment law litigation for 30 years, but in the early 2020 I started thinking about mediation as something that might just deliver that win-win in, i.e. that both sides actually feel there's a positive outcome. That’s when I trained to be a mediator.

Emma: Why is mediation so useful for conflicts?

Anne-Marie: Conflict is everywhere and is not necessarily a bad thing – in fact out of conflict, the most creative solutions can arise. But when conflict becomes entrenched, it can become so damaging to relationships, disruptive and detrimentally consuming of time and resources.

Emma: What are some of the benefits of mediation?

Anne-Marie: I would say first and foremost, it works. If you use a well-trained mediator, there is an incredibly high success rate of an agreeable mediation outcome.

It's also quick. It's something that you can get in place relatively quickly. If done early enough it can help preserve relationships before they disintegrate and can help to avoid lengthy and time-consuming hearings, grievances or litigation.

It's low cost. When you actually compare the costs of things going really badly wrong, getting the benefit of a well-trained mediator in, can end up saving you time and money.

Finally, and for me, most importantly, there is a power which comes from the process of mediation. It is solution driven. It gives power back to the individuals to actually come up with a solution rather than having a solution imposed on them.

Emma: What kind of conflict is suitable for mediation?

Anne-Marie: In a workplace environment, mediation will be suitable for most types of conflict: those that involve power imbalances, relationship breakdown, different styles of working and resistance to change are probably the most responsive to mediation. There are so areas that are definitely not suitable for mediation (for example a health and safety issue), but I will always check with my contact at the company before taking on a mediation to ensure it is something that can be mediated.

Emma: What type of mediation would work best in the workplace?

Anne-Marie: In the main, I would say facilitative mediation works best. This is a voluntary process where the parties get together with a mediator to try and resolve their differences. It is confidential and the mediator is impartial. The mediator will work with both sides individually to understand the nature of the dispute, and then bring the parties together to help them find a solution. No solutions are imposed by the mediator, but they are able to help with suggestions.

I do also undertake evaluative mediations – these work best where the parties are already involved in litigation and are looking to settle. Here I can use my 30 years as an employment lawyer to really help parties understand the strengths and weaknesses of their positions, and the benefits of settlement!

Emma: Do you ever find people resistant to mediation?

Anne-Marie: I've got to say in my experience, the person who either has brought the grievance or is the subject of a disciplinary process are usually quite open to it. It's actually the person they're complaining about who often shows resistance. So, it's the manager who says, "Well, I've not done anything wrong. This person's poor performing. Why are you making me go to a mediation?" And they're the people I have to work on. It is a voluntary process, so you can’t make employees do it. But I am very used to overcoming resistance to mediation.

Emma: Would you say there are benefits of having an external mediator?

Anne-Marie: Yes, I do think that it is the case that an internal mediator could be “too close”. I think people do open up to people who are strangers believe it or not and part of my training is about building a relationship quickly and being empathetic. Also, I can give them reassurance that nothing they say will be “going on a file”. It is all confidential and there is no full report to HR at the end.

Emma: Why do you think the percentage of employers using mediation is so low (around 5%)?

Anne-Marie: It is very low, isn’t it? I honestly wish I knew. When you compare the costs to businesses of dispute (and by that I mean, the costs of sickness absence, the costs of low productivity, the costs and time of investigating and hearing grievances and disciplinaries, the costs of tribunals and the recruitment costs of finding new staff to replace people who have left), mediation feels like an obvious positive decision to me.