The approach used is called “transformative mediation” and focuses on the relationship between the parties. This process empowers each party to express herself/himself and to re-establish their connection with the other person. The premise is that, once the parties’ interests are clarified and the relationship is sorted out, the “issues” or “positions” tend to resolve themselves.
Steps in Mediation
- The mediator contacts each person by phone, introduces himself, and asks to meet individually with each of them. It is explained that this initial meeting is confidential and that there is no obligation to proceed further if they are not comfortable with the process.
- If there is agreement, the mediator meets with each person to:
- hear their story (history of the relationship)
- hear what their needs are
- hear their concerns or fears
- explain the mediation process and the role of the mediator
- answer any questions about the process
- offer mediation, if appropriate
- If the parties agree to mediation, the mediator arranges to meet together offsite with both individuals. At the beginning of the meeting, ground rules for discussion are agreed upon. Each individual then has the opportunity to describe the situation from their own perspective and to hear and understand the other person. Options for resolving the situation are identified and, with sincere effort on everyone’s part, a solution may be reached.
- Sometimes the parties agree that additional meetings are necessary to reach resolution.
The Mediator’s Role
It is explained to participants that the mediator’s role is to:
- Facilitate the communication process (not to determine right from wrong)
- Assist them to clarify their needs and understand one another
- Assist them in exploring options for resolution (not to provide solutions.)
How to Offer Mediation
To be effective, mediation should be a voluntary option for both parties. In some cases employers “require” their employees to participate in mediation. Occasionally this can work but is a very difficult process for all concerned as there is no initial buy-in. Here are some guidelines for an employer offering mediation to an employee:
- Explain that mediation is voluntary and confidential.
- Explain that the purpose of mediation is to facilitate communication so that working relationships may improve. It is not a judicial or labour relations process.
- Emphasize that they may withdraw from the mediation process at any point if they feel it is not working.
- If they are reluctant to participate, ask if they would be at least willing to meet individually with the mediator to discuss what the process involves. After that point, they can decide whether they are comfortable in proceeding.
- If you obtain agreement for the initial meetings, provide the mediator’s name and advise the employee that the mediator will be contacting them. Ask if the employee would prefer to be contacted at home to maintain confidentiality. Any contact information can then be conveyed to the mediator.
Mediation Consent Form
At the beginning of the joint meeting, each participant is asked to sign a consent form. Guidelines for communication are agreed upon and are included in this form. Here is a sample:
I, John Doe, understand that mediation is a voluntary process in which I have agreed to participate. The purpose of mediation is to help me arrive at an acceptable agreement after participating in open and honest discussion. To achieve this, I agree to the following guidelines:
- Treat others with courtesy
- Listen without interrupting
- Remain seated during the mediation process
- Keep the discussions confidential
- (Other guidelines as agreed by participants)
I understand that (mediator’s name) will keep the content of my mediation session(s) confidential to the fullest extent possible. I also agree that I will not involve the mediator in any grievance or judicial hearings, including arbitration, which may arise in the future.
If agreement is reached, participants will normally complete and sign a mediation agreement. This form is not legally binding but is intended for the participants’ personal reference in remembering the key points of their agreement.
The terms of such an agreement vary depending on the situation. Often, however, they set out guidelines for how the participants will communicate respectfully with one another in future. Also included may be commitments to taking specific actions that will help to heal the relationship.
Each participant retains a copy of the form.
Employees involved in mediation require assurance that confidentiality will be maintained. If they believe that the content of their sessions may be relayed to third parties, they are unlikely to participate openly and fully in the process.
Often, however, employers request a progress report to determine if further intervention is needed. If this is the case, participants should be advised by the employer at the beginning of the process. It is recommended that the content of any mediation report be limited to answering the following general questions:
- Did both parties attend the meeting and participate in the discussion?
- Was a solution agreed upon?
- Are additional meetings required?
- Is there anything the employer can do to facilitate the agreed-upon solution?
During their sessions, participants will sometimes agree that certain information needs to be shared with the employer and request that the mediator convey these items. These may include questions about role clarity, work schedules, division of workload or other factors affecting the working relationship.
Follow-up by the Employer
Within a week after mediation has ended, it is recommended that the employer follow up with each person in confidence. In general terms:
- Ask if the mediation process was helpful.
- Find out if either employee requires additional support or resources to assist in implementing any agreed-upon solutions.
- Advise that follow-up mediation sessions are available to “fine-tune” the agreement if necessary.
Monitor the situation for the first 2 months by checking in briefly with each employee every couple of weeks. Keep in mind that some backsliding is normal when people are trying out new ways of interacting with one another. If you sense that things are starting to get out of hand again, however, the situation should be addressed as soon as possible.
If No Agreement is Reached
Even if the parties are unable to reach an agreement, the opportunity to express themselves and be heard is sometimes enough to re-establish the working relationship over time.
If inappropriate behaviour continues, however, performance management measures should be implemented promptly with each employee as required:
- Advise the employee of the expected standard of behaviour.
- Describe the specific behaviours that do not meet the standard.
- Indicate what changes the employee needs to make in their behaviour.
- Assist the employee in developing an action plan for changing the behaviour.
- Establish a timeline for changing the behaviour.
- Offer any support or resources that the employee may need to make the required changes (eg. EAP, coaching, further mediation)
- Clearly describe the consequences if the behaviour does not improve to an acceptable standard within the established timeline.