Chapter 1: Introduction

“The talent most lacking in corporate America is the ability to effectively manage conflict in the workplace.”

Bob Delaney

I wrote this book specifically for HR managers who want to master the skill of mediation. It is very much a ‘how to’ book that seeks to demystify mediation and make it available to managers of people, like you.

Is this you?

The first assumption I make about you is that, for whatever reason, you are not afraid of other people’s conflict. In fact, you are drawn to it in a strange way and are already approaching conflict situations with what I call the ‘mediation stance’. This does not mean you are comfortable with your own conflict, or that you manage it well. However, you recognize that conflict is inevitable and that there is more to conflict resolution than fight and flight.

Secondly, you are frustrated by the way in which conflict is currently being handled in your organization. In particular, while you understand the need for efficient fact-finding procedures to establish whether a breach of law or policy has occurred, like compliance investigations and hearings, in your opinion this strategy is overplayed. You think that it is often used instead of what is actually needed, which is getting people to talk to each other. Even when the strategy is legitimately used to determine whether allegations are true or not, it often generates collateral relational damage and emotional fallout.

Thirdly, you have an innate ability to help others in conflict, and, importantly, you want to make a difference in order to make your organization more peaceful. You are aware of mediation as an approach to resolving organizational conflict, and you are eager to learn how to use it. Even if you are unsure about your natural ability to mediate, you consider conflict resolution and mediation a skill set that can be learnt. My belief is that this is precisely why you are reading this book. While it is true that many mediators have innate skills, like leadership, mediation is indeed a skill set that can be learnt.

Goals of this book

My goal is to support you to successfully master the skill of workplace mediation. I want to make it easy for you to gain confidence in your ability to mediate. I want to share with you what I have learnt from working as a professional mediator with an employment and workplace focus. I am going to reveal all I know about resolving conflict as easily as possible, so that you can do it too.

I am also going to weave in what I have learnt academically while teaching graduate students the skills of conflict resolution, negotiation and mediation. For some time now, as part of my corporate training practice, I have taught HR managers the skill of mediation through the offices of the Northern California Human Resources Association. Although a book can never replace the learning that occurs in a classic training environment, my hope is to convey to you, through these pages, what I cover when training your colleagues.

I do not have to tell you how debilitating poorly managed workplace conflict can be. It can be especially difficult when you are directly involved yourself, but also when you experience conflict indirectly through your HR role. I want to give you the tools to do something productive about it.

Conflict does not have to be a headache. In fact, it should be seen as a sign of vitality; that something needs to change within an organization. Having mediation as a tool can go a long way to support authentic organizational harmony and well-being. And if you are the one doing the mediation, you get the accolades for being a peacemaker!

Mediation defined

Mediation is a conciliatory process in which an acceptable third party intervenes in the conflict or disputes of participants, in our case, employees, with the goal of supporting them to reach agreement.

Close attention to the above definition of mediation is given in Chapter 5.

Mediation is a process that is premised on the belief that involving a third party in a conflict can be helpful. The goal of the mediator is to intervene in a manner that is supportive of participant self-determination. This means that the mediator is not the decision maker. Our role is to not make decisions. The participants in our mediations are always the ones who are responsible for what happens. We facilitate their conversations and negotiations, and support them as they make their own decisions. If we make the decisions, whether directly or in effect through the application of too much pressure, we move out of our mediator role.

For those who harbor a lingering confusion about the distinction between mediation and arbitration, decision-making responsibility is at the heart of the distinction. Arbitrators engage in a fact-finding process and decide who wins and who loses. They make the decisions for the disputants. Mediators are facilitators who do not decide.

And while we often think of both mediation and arbitration as formal processes that are conducted by ‘professionals’, we can also say that managers both mediate and arbitrate, depending on who is responsible for any decisions.

Who can mediate?

In most parts of the world, mediation is unregulated, and when it is regulated, this normally occurs in the formal legal context. This means that you do not need permission to mediate within your organization, and you are not required to take any mediation training (although training is recommended). What matters most is whether you are acceptable to the disputants who are in conflict. It also means that you are not the only one who can mediate. Any employee can mediate. In most organizations, there are the peacemakers – those employees towards whom others naturally gravitate because of their ability to help when there is a conflict.

Some organizations train cadres of employees to be available to provide workplace mediations. Other organizations train their managers to be managerial mediators and to adopt a mediation stance as much as possible. Increasingly, Employee Relations (ER) specialists are trained to conduct mediations. And, of course, there are the external professional mediators who are available to come in and help out.

Why mediation makes sense

For those who need convincing, I offer some reasons to mediate.

Firstly, it saves money. In 2010, the RAND Institute for Civil Justice estimated that it cost, on average, $150,000 to defend an employment discrimination lawsuit in the United States. But the costs of poorly managed conflict are not limited to the legal costs that are incurred when your organization has to defend itself in court. When a conflict drags on and on, and ensnares more and more bystanders, the amount of time spent is staggering. To find out just how staggering, estimate the time spent by each individual employee affected by the conflict, and then multiply this time by each person’s salary!

Add to this the indirect costs of absenteeism, staff turnover, restructuring of the workflow to accommodate conflicts, health costs, theft and sabotage, and – not unimportantly – lower productivity, and you will begin to get to the real cost of poorly managed conflict. The bottom line is that conflict costs money, and for the most part, unless it shows up as legal fees, that cost is not being measured.

A second reason to use mediation is a practical one. HR managers need a variety of tools to get their job done. Mediation is one such tool. It should not replace the fact-finding investigation or hearing, but it needs to be added to the HR toolbox. Investigations are required to determine whether there has been a law or policy violation and what to do about it. Mediations are required to resolve conflict, especially when an important ongoing relationship is in trouble.

Beyond cost savings and pragmatism, there are a myriad of other good reasons to consider mediation in your organization. Mediation as a process has a lot of integrity. It values self-determination, is respectful of the need for privacy and confidentiality, and promotes voluntary participation. What this means is that participants in a mediation have high levels of control in a safe process.

Although success is never guaranteed, mediation results in a mutually acceptable resolution most of the time (in over eighty percent of cases). Mediation is therefore hopeful and helps to chart a better future. It increases the possibility of lasting peace through sincere reconciliation.

Conflict is a call to explore ourselves, including our levels of self-awareness or consciousness, and our emotional maturity. Mediation often creates the space for profound insights which frequently lead to shifts in perception, learning and growth.

And, if HR managers assume a mediation stance and support both their managers and their employees to work out their own conflicts, without taking sides, they avoid the perception that HR is simply a biased arm of management.

Finally, mediation can be used to resolve a wide range of situations. As an early intervention, it can be effective to address trust and identity issues in relationships before a conflict spins out of control. At the other extreme, as the legal profession has found, mediation can be used effectively to resolve employment lawsuits that have turned workplaces into veritable war zones.

When to mediate

Attending to conflict early on is always a good idea. Waiting for destructive behaviors or for a formal dispute to emerge means that we have missed early opportunities to nip the conflict in the bud. As an HR manager, you should do your best to be alert to the earlier but more subtle warning signs that tell you conflict is brewing. Yet you cannot be everywhere, and the truth is that you are not responsible for your line management’s conflicts. As a result, you will become aware of many conflicts only after much water has flowed under the bridge, often by noticing signs of intense struggle, polarization and escalation. When you do become aware of these conflicts, you will be able to use the skills you have learnt in this book to support the emergence of a successful resolution to these acute and sometimes chronic conflicts.

Of course, if your organization has to investigate a workplace complaint as a matter of law or policy, you may consider using mediation in conjunction with the investigation or, as is becoming more popular, after the investigation. This can be especially helpful where either one or both of the employees involved are unhappy with the fact of the investigation and/or the outcome, and still need to work together.

Some conflicts are not resolved and end up in the administrative or legal system as a result of formal complaints filed by your employees. Although at this point your role is more likely to be that of an organizational representative, in most jurisdictions there will be further options for mediation. This is certainly true in California, where both the state Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission have mediation programs. In addition, most state and federal courts will encourage the use of mediation before going to trial for employment and labor matters.

Suitability of mediation

Generally, mediation is a great idea where there is an ongoing relationship that is characterized by poor communication and emotional charge, the so-called personality conflicts. Employees are too often transferred or moved, at great expense and inconvenience to the organization, in order to accommodate an ongoing personality conflict. Although transferring an employee may be the best solution in some cases, employees should be expected to address their interpersonal conflict directly, and be supported through a process like mediation, if necessary.

To be able to participate in mediation, the parties need to be able to listen to one another, communicate their needs, and negotiate. Where a participant is too upset or extremely hostile, mediation may not work. However, this is often more a question of timing, and one of the strengths of mediation is its ability to address strong emotions.

The reality is that you usually meet your mediation participants at the place where they are on their life path, especially as regards emotional self-awareness and personal responsibility. It can be very difficult mediating with emotionally immature individuals who assume a victim mentality and are fixated on vindication. That said, you may choose to mediate notwithstanding the immaturity of one or more of the participants. This is because an agreement or a narrowing of the issues is still going to be better than a chronic unresolved conflict situation.

It is not unusual for the underlying or real issues not to be addressed during the resolution of a formal complaint. For example, an employee alleges discriminatory intent in relation to the way vacations are assigned. An investigation establishes that there is no bias, and so while the formal complaint may have been resolved from the organization’s perspective, the underlying tension between the manager making the assignments and the employee has not. In this case, mediation would be the perfect tool to help explore what is going on and to help restore the productive relationship between the employee and manager through creative solutions.

Mediation may not be appropriate when an employer wants to establish a precedent to create certainty about a policy. In those rare situations, an employer may need an administrative agency, court or arbitrator to rule on the issue at hand.

Organization of this book

I want to make it easy for you to learn the skill of mediation. However, you are going to have to do more than just read this book. You need to practice and acquire hands-on experience. For an HR manager, gaining experience should be easy, especially as you start noticing how often the basic elements of mediation are at play: you (the third-party HR manager) supporting two employees to find their own solutions.

I have included some useful resources at the end of the book that should help you to get started and to sustain you along the way. There is a sample agreement to mediate, an opening statement, and – importantly – a ‘laundry list’ of typical agreement clauses that you will be able to use in the mediations you conduct.

I explore the mindset of the mediator through the postures of the mediator’s stance in Chapter 2, and then conflict resolution (Chapter 3) and the key communication skills of the mediator (Chapter 4). In Chapter 5, I review my definition of mediation in detail, and in the ensuing chapters consider the various phases of mediation, from the room set up and opening statement in Chapter 6, to the education phase (Chapter 7), the option-generation phase (Chapter 8), the negotiation phase (Chapter 9) and, finally, the closing phase (Chapter 10). In Chapter 11, I take a closer look at both the structured caucus and the importance of follow-up. In Chapter 12, I apply the lessons learnt to the fictitious situation Harry and Sally are facing, and see how mediation could work for them. Chapter 13 concludes by looking to the future.