Mediation: A Low-Cost Strategy for Resolving Workplace Disputes

Fall 2018

Indiana University-Purdue University Indianapolis has for the past few years been using — with much success — a mediation program to address and resolve interpersonal conflicts among staff and faculty before they manifest themselves in bigger ways.

Daniel Griffith, who created the program and serves as director of conflict resolution and dialogue programs at Indiana University-Purdue University Indianapolis (IUPUI), and Dimples Smith, associate director of academic resources at Purdue University Fort Wayne, shared an overview of IUPUI’s program and a similar program at Purdue Fort Wayne (how it was implemented, how it works, how mediators are trained) in a previous issue of The Higher Education Workplace magazine (read an overview of the full article).

Here, Griffith and Smith expand upon the how and why of mediation, including some considerations and limitations for facilitating a workplace mediation program, documentation best practices, and how to approach mediation in specific situations.

Q: What are your suggestions for promoting mediation in lieu of formal complaint processes?

A: It is important to implement an initial organization-wide communication plan and then continue communication on a quarterly or biannual basis. Credibility can be built through word of mouth when others share their experiences of how mediation was valuable, or how it helped address the matter with which they were dealing. Create awareness through your organization’s newsletter, by presenting at departmental meetings, through testimonials from individuals who benefitted from mediation, and by sharing the resource with managers on a regular basis.

The best way for HR to promote a mediation program is to assess each employee relations situation to determine if mediation can provide a low-level conflict resolution alternative. Working in conjunction with the institution’s ombuds program provides an additional means of promoting the resource.

Q: How does mediation work in a unionized environment?

A: We would advise consultation with legal counsel on whether the principles and processes used for mediation would in any way nullify any agreement reached under the collective bargaining agreement. Other components such as note taking and the destruction of notes should also be vetted with legal counsel.

Q: What should not be mediated?

A: The baseline we have established is that issues found to be unethical, in violation of university policy, regulations or guidelines, or in violation of a federal or state law or regulation should not be mediated. Examples include sexual harassment, violent behavior, academic dishonesty and theft. We have trained our mediators on what they need to be aware of as they go through the mediation process and to stop the mediation process if these types of issues are raised. Parties should be made aware, in writing, of the limitations of mediation as well as the possibility that the matter may be referred to the appropriate venue if mediation is deemed not appropriate.

Q: What is the recommended time frame for mediating a workplace conflict?

A: We recommend a 90-minute to two-hour time frame for mediating a workplace dispute. In many cases, after the parties have told their stories and the mediator has framed the issues for resolution, it will be evident after 60 to 90 minutes whether the parties are moving toward an agreement. That said, a good practice is to request that the parties plan for a half-day to be available for mediation so they don’t feel rushed or pressured against another meeting commitment in case they need more time.

Parties should feel as relaxed as possible in order to discuss their concerns and work through disagreements. If the mediation requires more than three hours, you should schedule another meeting time to continue. In addition, even with an agreement, it is common to schedule a shorter meeting about two weeks to a month after the mediation to check in and ensure the parties are following through on the agreement reached.

Q: How should the resolution be documented?

A: Asking the parties if they would like to document the outcome for signature is important when mediation is marketed as a voluntary process. The best way to document a resolution is through a written document that both parties sign. Alternatively, you can follow up through email to establish the understanding both parties walked away with and to request their verification of the final understanding. However, not all resolutions require formal documentation. Some mediations are more informal, and the parties may feel a verbal understanding of what they agreed to is sufficient.

We recommend that any notes that are taken by the parties during mediation stay with the mediator until they are destroyed. This does not include notes and documents the parties bring to mediation, which they may retain. The mediator should destroy the notes taken by all parties during the mediation (including his or her own notes), though he/she may retain the notes long enough to prepare the mediation agreement, if one is required. Destroying notes is one additional measure for ensuring the confidential nature of the mediation.

The intent of mediation is to avoid or suspend formal grievance, discipline and other adjudicative processes so that parties can have control in resolving their issues in a manner that works for them rather than relying on a third party to decide. Mediations are not evidentiary hearings. If mediation is unsuccessful, what transpires in the mediation, and the information shared, should not be used as evidence in subsequent decisions made affecting the parties. Destroying notes is one measure that can help ensure this doesn’t happen.

Q: What about mediating employee/supervisor disputes when the employee is afraid of retaliation?

A: The essence of mediation is that power differentials remain at the door so the parties can reach a shared resolution. Mediation will not work if either party has a preconceived resolution that they are not willing to alter, even if they gain additional insight during mediation. Both parties have to be transparent on what is non-negotiable and what their fears or concerns may be. Mediation may not be appropriate if either party feels that retaliation could occur. For such disputes, it is all the more important for the mediator to understand the nature of the dispute.

Q: How do you encourage someone who would rather ignore the problem, or is reluctant to work with the person with whom they have an issue, to engage in the mediation process?

A: Individuals who ignore a problem often either do not know how to resolve it or lack the skills to do so. It is also possible that the individual does not want to resolve the problem or does not see that there is a problem. The mediator should seek to understand what aspect of the problem the individual is “ignoring.” Often, when someone is reluctant, the biggest challenge is helping the individual see the value and benefits of mediation.

If parties do not come willingly, there is a risk that any resolution reached will not have their full commitment. Parties should not be forced to engage in mediation. If they are adamant about not participating, that request should be respected, or it may be perceived as coercion. The mediator can request to have a one-on-one meeting with the individual who is reluctant or refuses to participate, but only to understand the reluctance and to explain the benefits of participating, while ultimately respecting the individual’s desire not to engage if that is his or her choice.

Q: How do you handle situations when parties raise their voices, won’t listen to each other, or become confrontational with each other? How do you de-escalate or “reset”?

A: Mediators must be comfortable with high emotions, which parties may exhibit through confrontational behaviors, raised voices and similar behaviors. Mediators should not arbitrarily halt such behaviors, particularly if it appears that the parties are beginning to share their deepest concerns, which can then provide a basis for finding solutions. There are limits to allowing such behaviors to continue, however, particularly if someone is clearly uncomfortable or if the behaviors seem threatening, belittling or otherwise counterproductive.

While there is no prescribed way to de-escalate such situations, calling a break can help. During the break, the mediator can address these behaviors privately with a party. Taking a break also gives parties a chance to breathe and decompress, which can then help them focus and calm down once the session resumes.

Q: How do you address differences that are deeply rooted or have been simmering for years?

A: We advocate for appreciative inquiry rather than solely relying on problem-focused questions. A problem-focused inquiry focuses on what the problem is and tends to ask “who,” “what,” “where,” “when” and “how.” While these questions get at the facts, they can cause the parties to focus on only the negative past rather than consider a new and positive future. Appreciative inquiry helps them establish a new vision for their relationships. Even in long-term relationships where deeply-rooted conflict exists and may have never had a positive or productive “past” from which the parties can build, appreciative inquiry questions may still help. Examples include:

  • What would a positive, productive working relationship look like to you? What is currently occurring? How does it feel?
  • What would you want your coworker to understand or do in order to support the positive, productive working relationship you have described?
  • What is your greatest hope for your working relationship moving forward?
  • What does “team” mean or look like to you?

Inquiring about the parties’ respective values around teamwork, work ethic, supportive relationships, a civil workplace and other concepts may help parties reflect on a better future, even if they never experienced a positive past.

 

The CUPA-HR office will be closed Fridays through August 16.