Senior Partner Fletcher Day
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How mediation can ease disputes in the workplace

26th Sep 2019
Senior Partner Fletcher Day
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There are all kinds of reasons why it makes sense to deal with small issues before they become major ones, but what is entirely sensible in theory may be rather more difficult to implement in practice.

In the world of work, for example, managers and HR teams should, in theory, be able to manage any workplace issues before they reach either a court of law or the court of social media.

In practice, however, there is a very real likelihood that company employees may see their managers and/or HR as being if not the whole problem then at least part of it. This is exactly where workplace mediation can help.

Managers and HRs may struggle to be perceived as independent

Managers are employed by the company and HR representatives are either employed directly by the company or assigned to work on behalf of the company.

In other words, the interests of managers and HR representatives should be aligned with those of the company. This means that, even if they are not the problem, or even part of the problem, it’s understandable that employees might be dubious about accepting their impartiality.

In fact, the employee may have a fair point. Managers and HR representatives are human too and may be influenced by subjective factors (including self-interest and their feelings about an employee).

Mediators, by contrast are paid a fee by the company, but have no stake in its long-term success.

Accepting mediation may benefit the employee even if it is unsuccessful

Generally speaking, people want to be seen to be doing the right thing and that includes giving another party a fair opportunity to put right any wrongs. Therefore an employee who enters into mediation in good faith may gain further down the line even if the mediation is unsuccessful.

For example if they decide to "go public" they may not only gain more sympathy but also reduce the risk that their actions will limit their future employment prospects. Similarly, if they choose to take the matter to court, the mediation process could serve as good preparation for an eventual court case.

Mediators are not lawyers but they are people who will try to understand and communicate both sides of an argument and thus give the employee some insight into what they can expect from a defence lawyer. There is therefore an inducement for an employee at least to try mediation even if they are dubious about their employer's sincerity and/or its chances of success.

Mediation can be emotionally cathartic

The law is essentially about the facts. Courtrooms can be very emotional places but ultimately those in charge of them have to place limits on the degree to which emotions can be expressed.

Lawyers can be good listeners, but they also tend to be very expensive ones. Mediators are neither lawyers nor councilors but they can and do make time for the emotional aspects of any situation and can provide a sounding post for employees who need to vent or a shoulder for employees who need to have a good cry (in some cases they may do both).

By taking the emotional charge out of a situation, mediators can make it possible for employee and employer to have a rational and productive conversation which would never have taken place without their help.

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