If approached in the right way, mediation can take the heat out of the kitchen, writes Dr Gerry McMahon

When the manager and the chef had another row, the chef was dismissed. As a result, business plummeted. Things got worse when the Workplace Relations Commission (WRC) awarded a sizeable pay-out to the chef for unfair dismissal. Of course, similar rows broke out at the chef’s next workplace. This prompted the manager to bring in a mediator. Problem solved!

Mediation is a voluntary, positive, forward-thinking way of resolving disputes, using a neutral third party to facilitate agreements. Its growing popularity is associated with high settlement rates, participant satisfaction, repaired relationships, improved morale and performance and cost effectiveness. Whilst the Mediation Act 2017 is a ‘game changer’ for both the status and ground rules associated with the process, the recent WRC decision to reject a supervisor’s unfair dismissal claim for refusing to accept mediation for the ‘exploration of possible solutions’ (ADJ-00012876), is yet another marker as to this widely accepted and popular practice.

Mediator’s Role
The mediator’s role can be described as one of assisting the parties to understand the issue(s) at hand and help them to reach their own agreement in resolving matters. In doing so, the mediator must:
• Remain independent/neutral and not take sides
• Not make decisions for parties
• Not hand down judgments
• Meet with parties independently and jointly
• Stay in charge of the process but not the outcome.

The types of issues that can be the subject of mediation include:
• Interpersonal conflict/personality clashes
• Perceived discrimination, harassment and bullying
• Unreasonable work demands
• Inappropriate behaviour or treatment
• Differences of working style or approach
• Communication breakdown
• Inappropriate use of power, status or position.

Mediation Steps
The steps to successful mediation normally include the following:

Step 1
One or both parties prepare a short summary of their position before the process commences and sends them to the mediator.

Step 2
After one or both parties contact the mediator – often via a referral from the Human Resources specialist or management – they discuss whether mediation or other options are appropriate to resolve the issue in dispute. So at the beginning, the mediator can meet the individuals separately for the purpose of explaining the role, process and ground rules for mediation. These first interactions should define the core issues and outcomes that each party hopes to achieve from the process. Before the formal proceedings start, parties to the mediation process will be asked to sign off/commit to an acceptance of the mediator’s role and the ‘ground rules’. A ground rule often deployed at this stage entails parties signing off on a statement to the effect that: ‘We agree to enter into mediation in an effort to find a mutually agreeable solution to our disagreement. We agree to the ground rules and understand that mediation is voluntary and confidential’. With regard to confidentiality (subject to Sec. 10 of the aforementioned 2017 Act), discussions with the mediator are private and details of what occurs within the process are not formally recorded or available for use in any other forum. Other helpful ground rules that parties can be asked to adhere to are that in the course of all meetings, they agree to take turns speaking and not interrupt each other, to listen respectfully and to try to understand the other person’s position whilst agreeing that even if they do not agree with comments, each person is entitled to their own perspective on issues.

Step 3
Having agreed to mediation and the aforementioned ground rules, parties will also need to consider how much time to give the process and who can participate (i.e. the timescale and the parties allowed attend meetings). The process usually allows for representation and parties can also seek expert advice if needed. However, in general, parties speak for themselves.

Step 4
Eventually both parties can convene in the same room (with the mediator) and are reminded as to how they have agreed to work together during the process. Each party may then make a preliminary presentation on the issues of concern, notably without interruption from the other party.
In due course, the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda (with the parties) of issues to be addressed during the remainder of the process.

Step 5
Having agreed the agenda and identified the issues for consideration, the mediation process is now about encouraging communication between the individuals, promoting understanding and empathy and changing perceptions. Another important aim of this part of the process is to start shifting the focus from the past to the future and to start finding some solutions.

Step 6
Having helped each party to hear the views of the other and identified areas of common concern, the mediator now progresses toward the ground(s) for resolution. Using effective listening, questioning and clarifying techniques, the mediator assists parties in developing an awareness that is designed to feed into a joint problem-solving process, culminating in helping parties to draft the terms of an agreement for signature.

It is important at this point that there be no repetition of arguments, as the mediator’s ‘move on’ questions force participants to consider:
• What common interests have we in finding a solution?
• What is really needed to fix things for the future?
• What must be done to satisfy us that matter(s) have been dealt with in a manner that allows us to work together harmoniously in the future?
• What type of solution(s) do we envisage that will enable us to maintain respectful and dignified interactions/communication with one another going forward?

Step 7
Once agreement has been reached, the mediator brings the process to a close, provides a copy of the agreement for signature and reminds the parties of their responsibilities for its implementation. One may also want to consider including appropriate review or monitoring arrangements for the future. At this stage, it should also be agreed as to who (if anybody else) will receive copies of the agreement (eg the relevant line manager(s) or HR partner). It is also important to note that records of the mediation process are not normally kept on personal files, as the notes taken by the mediator are discarded once the process has been concluded. If parties are unable to reach an agreement via mediation, they are free to pursue other procedures to try to resolve their issue(s) (eg the grievance or disciplinary procedure).

All round, mediation is a cost-effective route for reducing the ‘heat in the kitchen’ (or even the boardroom), sorting ill feelings, repairing relationships and enabling parties to work together.

Dr Gerry McMahon is a HR Consultant and Adjudicator at the Workplace Relations Commission, ppl1gerry@gmail.com