Post on 15-Jan-2016
Mediation at Work
Employment Law Advice
Workplace Mediation
Training
Project Management
CIPD 2010
Lili HunterEmployment Lawyer
MediatorDirector
Mediation at Work
Why Mediation?
Statutory 3-step procedures – success?
Michael Gibbons review 2007
Michael Gibbons is a trained mediator!!
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Michael Gibbons Review 2007“Rather than encouraging early resolution, the procedures have led to
the use of formal processes to deal with problems that could have been resolved informally. This means that problems escalate, taking up more management time. Employees find themselves in unnecessarily formal and stressful processes, which can create the expectation that the dispute will end in a tribunal. The complexity of the procedures and the penalties for failing to follow them mean that both employers and employees have tended to seek external advice earlier.”
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Gibbons Recommended:-
1. Employers to promote early resolution as a management tool and
provide advice, guidance & training to empower managers to
resolve disputes
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Gibbons Recommended:-
2. Employers to consider encouraging the use of mediation as a
standard provision in contracts of employment
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Gibbons Recommended:-
3. Ensure managers are fully aware of the realities behind tribunal
cases and compromise agreements.
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Gibbons Recommended:-
4. Where internal mediation is not successful, consider using
external third party mediators
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Internal v’s External MediationLine manager training
Internal mediators – fully trained & CPD
Third party mediators (external)
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What is Mediation?
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Form of conflict resolution
Alternative to litigation
The third side
People have a tendency to adopt positions
Positions become entrenched
The Mediator’s Role
Independent perspectiveConfidential, non-threatening environmentListening skillsExploration of the issuesEmotions allowedFacilitation of creative solutionReality checkingImplementation planWin-win
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A Mediator is NOT:-
A judge
A problem solver
Biased
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Mediator’s Responsibilities
Fairness – equal air timeControl – but don’t dictateComplete ImpartialityDecision Making – parties onlyFuture FocusTime ManagementConfidentiality
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Mediation v’s Negotiation
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JUDGING
JUDGINGNEGOTIATING
MEDIATING
Positional BargainingStart with solution
Each party has own solution
Their solution doesn’t take account of the other person’s
interests
Offer & counter-offer
No complete winners
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Positional BargainingThe pie is limited and I want the biggest piece
I win = you lose
We are opponents
Mine is the only right solution
I must stay on the attack
Concession = a sign of weakness
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Interest Based BargainingPreservation of the relationship is the starting point
Developing the relationship
Discuss needs and interests jointly
Joint problem-solving
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Interest Based BargainingThe pie is not limited
I win = you win
Needs of all parties addressed
Co-operative problem solving
Relationship is important
Lots of possible solutions
No loss of self-esteem
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The Cost of ConflictCost of formal procedures – time & money
Decrease individual competence
Ineffective working relationships
Toxic / absent communication
Poor staff / team development
Any more?
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Direct Benefits of Mediation
Reduces the cost of conflict – absence etc.
Reduces the need for litigation
Gets relationships “working”
Improves communications
Positive approach to conflict in future
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Why do we have conflict?
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environment
behaviours
beliefs & values
needs
I
Donald Taylor – 59 year old manager
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I Have a strong work ethic
Needs Need to work with men so I can respect my colleagues & get the job done
Beliefs& Values
Women don’t perform as well because of children / female issues
Behaviours “dear” frustrated with women. No promotion, team discussion
Environment Male dominant
Sue Baker – 29 year old engineer
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I Have a strong work ethic. Gender irrelevant
Needs Dignity at work. Job satisfaction & recognition
Beliefs& Values
I believe I can achieve the same as a man
Behaviours Offended by sexist behaviour. Withdrawn. Doesn’t co-operate
Environment Male dominant
Donald & SueDo they have any common goals?
How might we help them?
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Practical Mediation
Skills & Techniques
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Non-Judgmental – Open Minded
No judgment
Even if discrimination!
Risk bias if you judge
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Example
Tom: That Polish git is just making a fuss over nothing. Typical foreigner! Why do they always have to make such a huge fuss when you’re just trying to keep the atmosphere light? I wouldn’t mind if he was up to the same standard as the rest of us.
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Example
Mediator: Tom I can see you’re angry at Stefan. Is there something specific about his performance that you are unhappy with? Tell me more about that.
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Listening ActivelyBe patient & attentive
Show empathy
Listen between the lines
Check understanding
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Emotional Shorthand
When angry/upset we all:-
a) say things we don’t mean
and
b) Mean things we don’t say
=> You have to find the true meaning behind the communication!
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Reframing
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Take negative comment
Strip away toxic/unproductive language
Focus on interests and essential message
Feedback in positive format
Why Reframe?
There is an element of truth
Find the underlying interest
People want a constructive response to negative comments
Needs met = more productive communication
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THE MEDIATION PROCESS
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Outline of a Mediation
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Individual private session
Planning
Joint meeting
Facilitated agreement
Flexibility
Individual MeetingsConfidentialityNo recordExplain mediative approachListenDemonstrate understandingTrust
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Funnel!Gather informationExploreFocusReframeHelp them see the other sideIdentify the interests Identify the problemReassure re. process
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Joint MeetingsVenueSet up?Who goes first? – opening statementsWhat are you going to say?ControlSafe environmentEqualityFlexibility
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Solution Stage – Party Behaviour
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The Parties - Early stages The Parties - Solution Stages
Exchanging information, feelings, perceptions
Defining the issues and the problems without emotive, personalised language and without value judgements
Talking about the problem Exploring solutions
Past Future
Being heard through the mediator Talking directly
Solution Stage – Mediator Behaviour
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Mediator - Early stages Mediator - Solution Stages
Central to the process – acts as a filter. Convey useful information and filter out value judgements.
On the edge of the process – facilitating the parties discussion rather than leading it.
Restraining parties from destructive communication based on the past
Encouraging forward-looking
Directing the parties to work to a structure
Encouraging a more dynamic interchange
During Joint SessionsReinforce the purpose of the mediation
Give some direction at the outset as to format
Stay aware of your body language and everyone else's
Check they are listening to each other
Comfort and progress
Positive reinforcement & encouragement
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Generating OptionsBob what do you need from Jane on the first issue?
What might it be like if..?
What can you offer Jane to help her give you what you would like on this issue?
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Assessing OptionsRanking?
Reality testing
Exploration & explanation of options
Remind parties of their interests
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AGREEMENT
Can be in writing, but not essential
Who needs to know?
Confidentiality extended?
Settlement or plan for change
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