The Who, What, When, Why, and How of (workplace, non-EEO) Mediation Melissa Marosy, Owner Creative Conflict Resolution Enterprise Team Creative Conflict Resolution Enterprise Team Region 5, USFS

My background/perspective: 10 years experience in community mediation. 8 years experience mediating workplace disputes within the US Forest Service (past 6 full-time). Natural resources management and research background.

My background/perspective: Transitioned from meeting facilitation. Managed non-EEO portion of R- 5’s ADR program June 2003 – September 2004.

Styles of Mediation Facilitative vs. Evaluative Non-Directive vs. Directive Orchestrating vs. Deal-Making

WHAT Is Mediation?

A process of working things out by talking things through... An informal problem-solving conversation… Dialogue or negotiation…...with the involvement of an independent third party.

Facilitated one-on-one interest-based bargaining.

A formal, structured conflict resolution process that involves an acceptable third party who has no authoritative decision- making power, who assists the involved parties to voluntarily reach a mutually acceptable resolution of the issues in dispute.

A word about the voluntary nature of mediation… Mediation is by definition a voluntary process. USDA regulation states that “managers and supervisors are expected to participate in ADR when requested to do so, absent compelling reasons.”

A word about the voluntary nature of mediation… Compelling reasons (FS): 1.Criminal or serious employee misconduct is involved, and this misconduct is an issue in the request for ADR. 2.The case involves physical violence or threats of violence.

A word about the voluntary nature of mediation… Compelling reasons: 3.An earlier ADR attempt failed, the time span between the first ADR attempt and the request for another mediation is short, and there has been no change in material facts or the parties’ underlying interests in resolving.

A word about the voluntary nature of mediation… Compelling reasons: 4.The case is precedent setting or the remedy being requested is outside Forest Service control.

WHY Use Mediation?

It gets results. Experienced mediators average a 95% success rate. My success rate to date = 98.6%. (143 workplace mediations)

It’s quick and cheap. Mediations can be arranged quickly. Little preparation time is needed. The mediation itself typically takes 6-8 hours.

Parties retain control of the outcome. The mediator does not impose a solution on the parties. “Success” or “failure” of the process lies with the parties. –If they choose not to resolve, they may still use the process to decide how to “disagree amicably”.

Parties can tell their stories. Both objective and subjective points of view are considered. Interests can be shared. Emotions can be expressed and acknowledged. Parties are brought together rather than divided.

Both parties can be winners. “Win-win” resolutions are likely, and are more satisfactory than “win-lose” compromises. Solutions reached collaboratively are often more creative and mutually acceptable than either one of the parties would have proposed on their own.

Added benefits: Agreements more likely to be abided by. Parties learn tools for preventing or dealing with future conflict. Opportunity for personal growth and healing of relationships.

WHEN Should Parties Engage In Mediation?

Whenever both parties are willing and able to negotiate in good faith. The parties must want to find a mutually acceptable resolution. The parties must be able and willing to express themselves appropriately.

Whenever both parties are willing and able to negotiate in good faith. The parties must be willing to listen to and try to understand each other.

The sooner the better! The sooner the conflict is addressed, the greater the likelihood of positive resolution. It’s easier to identify and address interests before parties become entrenched in positions and negative emotions.

WHO are the Participants in Mediation?

The fewer the better! All necessary participants. –Who is necessary will vary from case to case. –At minimum, mediator plus two parties.

The fewer the better! No more than absolutely necessary. –Parties are more likely to be fully open and self-revealing when others are not present.

The Mediator Acceptable to both partiesAcceptable to both parties No decision-making powerNo decision-making power “Omni-partial”“Omni-partial” – neither biased nor impartial –an advocate for both parties

The role of the mediator: Guardian of the process. Communication facilitator. Agent of reality. Interest-based bargaining coach. Agreement finalizer.

What to look for in a mediator: Trusted by both parties. Experienced in non-EEO workplace mediation. Highly credible with a strong reputation and demonstrated track record.

The Parties (Disputants) Party 1 and Party 2Party 1 and Party 2 The grievant and the responding officialThe grievant and the responding official  The key active participants in the mediation.

The role of the parties: Talk directly with the mediator and with one another about the conflict at hand. Identify their issues and interests and seek to understand the other’s issues and interests. Work with one another to jointly resolve the conflict.

Representatives Union representativeUnion representative Management/technical representativeManagement/technical representative  Primarily silent participants.

Others SupervisorsSupervisors Subject matter expertsSubject matter experts TraineesTrainees OthersOthers  All must be acceptable to both parties.

HOW Are Mediations Conducted?

The stages of mediation: Convening Opening Story-telling Problem-solving Agreement

Convening (Mediator) 1.Determine the general nature of the conflict. 2.Identify the necessary participants. 3.Interview key parties. 4.Determine a mutually agreeable date, time, and location for the mediation.

Opening (Mediator) 1.Introduce self and mediator’s role. 2.Review ground rules (create safety). 3.Describe the process. 4.Discuss any time limitations. 5.Answer any questions.

Story-telling and Problem- solving Phase I—Parties talk to the mediator: 1.Brief summary of the conflict by each party. 2.More detailed descriptions of the issues and identification of interests, with the two parties alternating. 3.Mediator models active listening.

Story-telling and Problem- solving Phase II—Parties talk to each other: 1.Discussion of the issues and interests (mediator facilitates). 2.Active listening (mediator coaches). 3.Collaborative problem-solving.

Story-telling and Problem- solving Caucus—A private meetings between the mediator and each party. I use when: A party needs to meet with their rep. Things get very emotional. Something isn’t being said. There’s a reluctance to move forward.

Agreement Drafted by the mediator. Specific, measurable, includes time frames. Includes “What if?” and follow- up clauses. Finalized, agreed to, and signed by both parties.

HOW To Prepare for a Mediation?

Identify your issues and interests. Identify the other party’s likely or known issues and interests. Begin to think about collaborative solutions. Show up in a collaborative frame of mind.

The End (I’ll gladly answer any questions.)