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CIPD 2010 Lili Hunter Employment Lawyer Mediator Director Mediation at Work

Why Mediation? Statutory 3-step procedures – success? Michael Gibbons review 2007 Michael Gibbons is a trained mediator!! © Lili Hunter Consulting Ltd

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.” © Lili Hunter Consulting Ltd

Gibbons Recommended:- 1. Employers to promote early resolution as a management tool and provide advice, guidance & training to empower managers to resolve disputes © Lili Hunter Consulting Ltd

Gibbons Recommended:- 2. Employers to consider encouraging the use of mediation as a standard provision in contracts of employment © Lili Hunter Consulting Ltd

Gibbons Recommended:- 3. Ensure managers are fully aware of the realities behind tribunal cases and compromise agreements. © Lili Hunter Consulting Ltd

Gibbons Recommended:- 4. Where internal mediation is not successful, consider using external third party mediators © Lili Hunter Consulting Ltd

Internal v’s External Mediation Line manager training Internal mediators – fully trained & CPD Third party mediators (external) © Lili Hunter Consulting Ltd

What is Mediation? © Lili Hunter Consulting Ltd 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 perspective Confidential, non-threatening environment Listening skills Exploration of the issues Emotions allowed Facilitation of creative solution Reality checking Implementation plan Win-win © Lili Hunter Consulting Ltd

A Mediator is NOT:- A judge A problem solver Biased © Lili Hunter Consulting Ltd

Mediator’s Responsibilities Fairness – equal air time Control – but don’t dictate Complete Impartiality Decision Making – parties only Future Focus Time Management Confidentiality © Lili Hunter Consulting Ltd

Mediation v’s Negotiation © Lili Hunter Consulting Ltd JUDGING NEGOTIATING MEDIATING

Positional Bargaining Start 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 © Lili Hunter Consulting Ltd

Positional Bargaining The 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 © Lili Hunter Consulting Ltd

Interest Based Bargaining Preservation of the relationship is the starting point Developing the relationship Discuss needs and interests jointly Joint problem-solving © Lili Hunter Consulting Ltd

Interest Based Bargaining The 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 © Lili Hunter Consulting Ltd

The Cost of Conflict Cost of formal procedures – time & money Decrease individual competence Ineffective working relationships Toxic / absent communication Poor staff / team development Any more? © Lili Hunter Consulting Ltd

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 © Lili Hunter Consulting Ltd

Why do we have conflict? © Lili Hunter Consulting Ltd environment behaviours beliefs & values needs I

Donald Taylor – 59 year old manager © Lili Hunter Consulting Ltd 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 © Lili Hunter Consulting Ltd 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 & Sue Do they have any common goals? How might we help them? © Lili Hunter Consulting Ltd

Practical Mediation Skills & Techniques © Lili Hunter Consulting Ltd

Non-Judgmental – Open Minded No judgment Even if discrimination! Risk bias if you judge © Lili Hunter Consulting Ltd

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. © Lili Hunter Consulting Ltd

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. © Lili Hunter Consulting Ltd

Listening Actively Be patient & attentive Show empathy Listen between the lines Check understanding © Lili Hunter Consulting Ltd

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! © Lili Hunter Consulting Ltd

Reframing © Lili Hunter Consulting Ltd 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 © Lili Hunter Consulting Ltd

THE MEDIATION PROCESS © Lili Hunter Consulting Ltd

Outline of a Mediation © Lili Hunter Consulting Ltd Individual private session Planning Joint meeting Facilitated agreement Flexibility

Individual Meetings Confidentiality No record Explain mediative approach Listen Demonstrate understanding Trust © Lili Hunter Consulting Ltd

Funnel! Gather information Explore Focus Reframe Help them see the other side Identify the interests Identify the problem Reassure re. process © Lili Hunter Consulting Ltd

Joint Meetings Venue Set up? Who goes first? – opening statements What are you going to say? Control Safe environment Equality Flexibility © Lili Hunter Consulting Ltd

Solution Stage – Party Behaviour © Lili Hunter Consulting Ltd

Solution Stage – Mediator Behaviour © Lili Hunter Consulting Ltd

During Joint Sessions Reinforce 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 © Lili Hunter Consulting Ltd

Generating Options Bob 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? © Lili Hunter Consulting Ltd

Assessing Options Ranking? Reality testing Exploration & explanation of options Remind parties of their interests © Lili Hunter Consulting Ltd

AGREEMENT Can be in writing, but not essential Who needs to know? Confidentiality extended? Settlement or plan for change © Lili Hunter Consulting Ltd