Contemporary Mediation Practice : Employment Relations Service

“So it’s just about the money!” I imagine we have all heard this sentiment from advocates, lawyers and employers. This paper explores the basis of this view and whether a wider focus can be more useful to the parties in industrial conflict. Additionally, a new framework for understanding the mediation process based on a philosophy of the Ancient Greeks is introduced.

This paper links practical experience and research in exploring the range of opportunities available to parties in employment mediation and the ways in which they might be empowered to take advantage of them to create optimal outcomes.

Whilst, as mediators, we operate within a statutory framework with specified outcomes, there are still great opportunities to explore unique and creative solutions for the benefit of the parties. Ongoing relationships, collective bargaining, high conflict situations, emotional tensions, multi-party involvement, presence of advocates and support people, breakdown of relationships, special areas of interest (such as voluntary agencies and churches), intra- and cross-cultural conflict – all have multi-skills requirements. This paper’s focus is on the mediator/party interaction in identifying individuals’ needs and interests and how these may be meshed.

Being able to put names to what we do and why is always helpful in understanding best practice. An early Greek philosophy^[30] is useful in this regard. Its steps are:

Ethos: application in practice

There are many papers and articles on what it takes to be a mediator. I have heard it described as “… one doesn’t have to be a good person [i.e. saintly] but one has to be good enough”. Given that the primary role of a mediator is to make the process safe, it follows that the mediator has to be a safe person. This, to me, includes aspirations such as humility (to be guided by principles and ethics and to understand the extent of one’s own competencies), to suspend judgement and to accept that the parties need to take their own time to find their own unique solution, to conduct a process that meets the parties’ needs (as “pure” as possible but not necessarily adhering to a particular form), to be constantly looking for self-improvement and to be willing to accept new ideas from any source.

Back to basics

Some years ago, I asked a senior experienced lawyer what, in her view, made the difference in mediator skills in intractable cases. Her reply: “It is the amount of positive energy that the mediator brings into the room.”

A more recent comment based on the views of experienced mediators shows that the basics of listening, humility, trustworthiness, patience and hope^[31]a> remain the essentials for best practice.

What do parties want from mediation?

Case study: It’s not necessarily just about the money

A man had been injured in a work-related accident. At the time, he had been working night shifts, which attracted a penal rate of pay. On his recovery, he returned to work but on day shifts. The employer got him back on nights fairly quickly, but at the time of mediation, there was a claim for back pay of about $400 for wages he might have earned had he returned straight to night shifts. The worker wanted the cash. The employer could not compromise on the principle that it was his right to allocate workers to different shifts and a pay-out would have major precedent impact, but he also didn’t like the idea of a valued employee remaining bitter and disgruntled.

In discussion at mediation, the worker talked of the pain he had suffered and how difficult it had been to be at home unable to do much more than sit on the couch for some weeks while his wife was in the last stages of pregnancy. How many children? They had three under the age of five. What was life like for the two of them during this time? He went very quiet for a while and then acknowledged that life had been, and still was, tough. Would an EAP^[32] counselling programme help? In the end, the employer was glad to pay for counselling sessions for the couple (up to the value of about $1,000). The worker could go home to his wife having achieved a real benefit that addressed his real needs, and the employer came out smelling of roses.

In a 1996 paper, Virginia Phillipsdiscussed what “justice” means from the disputant’s point of view. Reviewing the literature to that date, she found that justice means both satisfaction and fairness. Each element is composed of three related components: a procedural component relating to the process, a distributive component relating to the outcome, and an evaluation of the neutrality of the mediator (or judge) by the parties.^[33]

My own experience in discussing with disputants what they mean by “wanting justice” is that they express the desire for an outcome that is satisfactory to them. “Satisfaction”, however, is a feeling.

What is satisfactory will vary with individuals, some of whom may not be able to articulate their needs. Discerning these needs and helping achieve unique outcomes that may or may not involve money is one of the aims of mediation.

Case study: Creative solutions

An employee left a pig farm for redundancy reasons but claimed the process was unfair. One of her senses of loss was being unable to work with the animals. The agreement achieved through mediation included the provision to her of “one healthy weaner piglet”.

Note also the increasing scale of satisfaction from results: settlement – usually where an answer is virtually imposed if only by external imperatives; agreement – where the parties agree to disagree and get a “fix”; and resolution – where the relationship is restored and all outstanding issues are laid to rest.

What do lawyers and advocates want from mediation?

As long ago as the 1980s, Riskin and Westbrook^[34] were writing about the “map references” that lawyers have for dispute resolution: to identify a relevant rule of law, find provable facts that apply, and winning and losing measured in money. These, they pointed out, had little in common with mediation whereby the law is relevant only to the extent that the parties agree (subject to lawfulness and ethical considerations) – winning or losing can be damaging to each side in achieving dignity for both, and the intent is to find solutions that mesh mutual needs and interests.

There are many lawyers and lay advocates who display great skill and common sense in helping their clients through conflict but also some who do not understand or pay attention to their client’s psychological needs. Some do not necessarily distinguish their own needs (i.e. to feel they have got the best deal possible for their client) from the needs of their client (which may be to get a reasonable deal with dignity for both sides and to move on). Unfortunately, much third-party negotiation, including in mediation, can be conducted in a manner calculated to be anything but open-hearted.^[35]

There are positive aspects to the role of advocates in mediation. Certainly, lawyers helping parties achieve results they could not get on their own is valuable indeed. However, some make mistakes until they fully understand the process that requires basically respect – for the process and respect for the other party. The best advocates have sensitivity to the process that can be of enormous help to the process, the mediator and their client.

Pathos: what emotional needs do parties want to resolve at mediation?

Asking parties, “What do you want to achieve?” gives the opportunity for expression of needs and feelings – the relevance and importance of pathos (relating to empathy, emotions and relationships) in mediation. Responses to this question will typically include altruistic as well as self-serving motives: “I want my good name restored”, “I want to make sure what happened to me doesn’t happen to anyone else”, “I don’t want to be blamed for the pain I am feeling”, “I want it to be over” and “I just want what I am entitled to”. Money may well be important, but in context, it is not always the first thing on top.

Money may also be a substitute for a variety of needs and be used as a metaphor for pain. Such needs are subjective. They may bear little relationship to a cost and risk analysis of litigation outcomes, which may be the focus of the other party. One technique is therefore to “unpack” the underlying emotional and other needs of the parties and find ways to address them more directly.^[36]

In attempting to categorise the emotional needs parties want resolved at mediation, I am indebted to Professor Mitchell Hammer of American University for his acronym “SAFE”:

ASPIRE

In discussion with Ian Macduff,^[37] we preferred “ASPIRE” as an acronym for parties’ needs and motivations at mediation:

The following is based on the work I have heard described of Reverend Marie Fortune of the United States who practises mainly in the area of sexual abuse by priests of all denominations. I also acknowledge the work of Rhonda Pritchard and Gordon Hewitt, both of Wellington, New Zealand.

These writers observe that, in many cases, the person feeling the most emotion will be the survivor. The perpetrator may have forgotten the matter, be in denial or have minimised the event in their memory. I suggest the greatest gift that a perpetrator can give a survivor is to be worthy of forgiveness. An apology can go a long way to that end.

On apologies

A suggestion for a compromise between “I’m sorry you are feeling bad” and “Mea maxima culpa” is along the lines of: “The employer acknowledges with hindsight that some of the circumstances leading up to the [event causing the personal grievance] could have been handled differently, and that this caused unnecessary distress that was not intended, and expresses its apologies that this occurred.” It is interesting how often some focus on emotional outcomes will enable financial outcomes to fall into realistic ranges without having to carry unnecessary baggage.

Case study: Saying and meaning sorry

A young man came to mediation the day before a criminal court appearance for theft as a servant to which he planned to plead guilty. His union represented him and wanted his employer to acknowledge that it had not followed proper procedure in its internal investigation, in order that the same issues wouldn’t arise for other union member employees in the future. About a thousand dollars would cover the point. The company wasn’t prepared to reward someone for stealing from them, although it was ready to apologise for its investigation. It also didn’t want to have to go through litigation. When asked what he wanted to achieve, the young man asked for the opportunity to apologise to his workmates who had helped him in the past and who he felt he had betrayed.

Outcomes in co-worker conflict

I focus on this aspect of employment mediation because this is some of the most challenging and exciting work we do, despite – or because of – the fact many such cases traditionally result in exit packages. Mediation will normally not occur until a point of crisis in a co-worker conflict. That is understandable; it is human for people to either not notice or avoid “raising the issue” in the hope that the problem will sort itself out. The conflict will often be based on issues such as miscommunication or psychological factors, and unique creative outcomes will be required.

In my experience, factors to consider in co-worker conflict cases include the following:

Mediations involving co-worker conflict may require several sessions or at least a follow-up mediation session booked as a review date.

Case study: Co-worker conflict

A new school principal was experiencing co-worker conflict with the full-time secretary. The principal was an enthusiast – she wanted things done differently and would intervene if the counter was (allegedly) unattended. The secretary became very glum, wouldn’t speak to the principal in the mornings and raised a personal grievance with her employer, the board of trustees (comprised of voluntary elected parents.) The board valued both women, but also wanted the conflict resolved as it was affecting the whole school community.

The opening statements of the mediation highlighted the practical issues. The secretary had not been enabled to understand the advantages the principal had introduced to the staff and school generally. The board came to understand that the physical office set-up meant that the secretary had her back to the counter and couldn’t attend it easily. The board undertook to hire an architect and get that structural change underway.

Impasse remained between the staff, however. The mediator asked them to swap places and then, from their new viewpoint, to write a list of things they could do to make life easier for the other. On returning to their original seats, they were asked to write another list – this time of what they might need from the other. When the lists were compared, they were almost the same. They included undertakings such as “I could smile” from the secretary and “I can spend more time explaining the big picture” from the principal.

Communication and linguistics

Whilst the theory and practice of communication is not new, its importance in being both the source of much conflict and the logical means of resolving the same are becoming more recognised.

The basic concepts of “encode” (formulating words that you think will be understood by the recipient), “transmit” (the means of communication) and “decode” (what the recipient makes of the message) are clear enough. The same is true for “attribution error”, in which a person assumes a meaning based on their own life experience, which varies from that intended by the speaker, resulting in miscommunication.

Recognition of the importance of metaphor is another issue. Metaphor is a useful strategy to enable communication through shared experiences, but it is also one in which it is easy to make mistakes. For example, men often use metaphors that draw on war, sport and sex, all of which may be of little relevance, or even high offence, to some women. The conscious use of universal metaphors related to journeying, geographical features, mazes and prisms of light have a greater chance of successful comprehension.^[40]

For example, if a mediator uses the term “ground rules” in opening, then they have to play the role of monitor and school teacher in enforcement. If the phrase used is “basic agreements”, then the parties take that responsibility themselves. In the event of breach, the mediator can take the moral high ground: “You agreed previously to [not interrupt in opening statements] – do we need to revisit that agreement?” Ultimately, we have no enforcement authority save to stop the mediation.

Logos: logic and rationality

Logos to the Ancient Greeks related to the sphere of logic and rationality. This is one element that lawyers, accountants and human resources advisors are skilled at – the logical, rational costs and risks analysis of potential court proceedings as an intervention technique – though I suggest the concept of logos has a more holistic dimension.

Case study: Addressing emotions

Two men had come to mediation over the allegation that one had been unfairly fired. The response was that the employee had hit the boss. The matter had gone to the criminal courts on a charge of assault but had been dismissed for lack of corroboration. All this had lasted over a year.

Meanwhile, the two men’s sons had played in the same football team, and the fathers had had to stand on opposite sides of the playing field for the whole season. After the lawyers had talked for the parties for some time, it was clear that there was impasse. It was also clear that the parties’ body language was of pain and of reaching out to each other. It was agreed that they would speak to the mediator alone.

As soon as they sat down, the employee leaned across the table and said, “I know my lawyer is claiming $7,000 but, you know, I would accept $1,000.” The boss stood and spoke for several minutes in a manner that was inarticulate, but from the heart. His message was that: “I’m hurting here, too, and $1,000 is still too much.” He then sat down. What to do?

What about treating the end of the employment as one where you both agreed to end it without allocation of fault? The employee looked up. “You know,” he said, “I would have accepted two weeks’ notice – what about that?” He was a part-timer, so this represented about $400. The employer got up, walked around the table and held out his hand. Then, as one, the two men put their arms around each other and wept on each other’s shoulders. As they left, they were heard promising to share a meal together.

The textbooks contain considerable lists of interventions appropriate for different cases. These include the obvious skills of clarifying, reframing, unpacking underlying issues, keeping the parties focused and so on. Professor John Wade of Bond University lists a repertoire of some 44 interventions,^[41] but highlights the absence of research on their effectiveness.

Associate Professor Lim Lan Yuam of the National University of Singapore offers some nine useful interventions.^[42] He emphasises the importance of power-balancing and empowerment of the parties so that responsibility for the solution does not move to the mediator, i.e. away from the parties who have to live with the consequences.

As discussed above in relation to pathos, there is a developing interest in addressing emotions as a major factor in helping people both overcome barriers and achieve lasting resolution. See, for example, Erin Ryan^[43] and the books she reviews for an interesting typology of the ways in which emotions impact in mediation. Particular skills for mediators are therefore in empathy, discernment of emotional messages and self-awareness of one’s own emotional reaction to issues as they arise.

“Pure” and “evaluative” mediation

Much of the criticism of mediators, especially by lawyers, is that some mediators, in following a “pure” mediation process, appear to sit back and do little to advance a solution. This leads to the tension between such mediators who avoid any comment on the substance of the case and those who offer an “evaluative” view on what might happen. The debate has been around for at least 20 years, and those who follow the mediate.com e-newsletter will know it still attracts hot discussion.

This leads to the variety of impasse-breaking techniques. If all other interventions do not work, then should one discuss the substantive issues? I suggest there is a subtle role boundary to be drawn. I myself will not evaluate. Advice is the advocate’s responsibility.

I will analyse a case, however – if asked for a comment – on the basis that this is valuable information the parties need to enable them to make a wise decision. For example: “The onus of proof in constructive dismissal is on the employee, and the threshold to justify a departure is quite high; these are the sort of issues you and your advocate will need to discuss. If s/he thinks you have a 40 or 80 percent chance on the particular point, then it is only sensible to factor that into your bargaining position.”

I also make a point of discussing litigation costs compared with likely outcome. Equally, if people are stuck and have no way of moving forward, I will ask them if they would like a smorgasbord of ideas from which they might choose based on my knowledge of what has worked for others in the past.

Use of humour

Laughter is often the best ice-breaker, but used inappropriately, it can backfire. At its best, it will help carry parties past impasse, and at its worst, they will feel they and their issues are demeaned. The ethics of the extent to which mediators should go to help people past stuck places – because manipulation would be an abuse of the process – are important in this context.

On a related point, and for a useful and challenging discussion, see Robert D. Benjamin’s ‘The Mediator as Trickster’.^[44] Benjamin argues that the traditional professional models of law, medicine and mental health are not well suited to the purposes and practice of mediation because they are “… fundamentally anchored in a technical-rational conceptual orientation that encourages the professional to be an expert”. He further asserts that: “The [folkloric] trickster figure, like the mediator, demonstrates the effective integration of both the analytical skill and the intuitive sensibilities necessary to be effective in the management of conflict.”

Benjamin argues for treating people and their problems holistically rather than mechanically. Note that he draws a clear distinction between mediator expertise and the mediator as expert (in the particular field). The latter may well lead to advice-giving, which he argues is the prerogative of a lawyer or advocate and, if conducted by the mediator, is a form of arbitration.

The stories we tell

Little anecdotes or one-liners can be useful impasse breakers – these quotations are either well known, from well known authors or New Zealand colleagues or invented:

Conclusion

It is quite common in complex cases for a settlement to cover 14 or 15 points of which only one or two deal with money. Each issue could justify a paragraph. For instance, it may be useful to ask the employee to write their own reference. They usually are conservative about their performance and will remember career highlights that the employer may have forgotten. Usually a reference is backed up with an undertaking to speak in reply to any enquiries only in terms consistent with the reference. This addresses the fear that the employee will be bad-mouthed behind their back. Note how wording will overlap with emotions – often an employee will want to feel valued for their contribution.

21 summary points for mediators

Whakatauki

It is traditional in Māori society to finish with a proverb to “add relish to the meat”:

References

Dale Bagshaw, Language, power and mediation, Australasian Dispute Resolution Journal, Vol. 14, No. 2, May 2003.

Robert D. Benjamin, The Mediator as Trickster: The Folkloric Figure as Professional Role Model, Mediation Quarterly, Vol. 13 No. 2, 1996.

J. Edelman and M. B. Crain, The Tao of Negotiation: How you can prevent, resolve and transcend conflict in work and everyday life, Harper Business, New York, 1993.

Elizabeth Ellen Gordon, Attorneys’ Negotiation Strategies in Mediation: Business as Usual? Mediation Quarterly, Vol. 17, No. 4, Summer 2000.

Lim Lan Yuam, An analysis of intervention techniques in mediation, Australasian Dispute Resolution Journal, Vol. 9, No. 3, August 1998.

Virginia Phillips, Mediation: The influence of style and gender on disputants’ perceptions of justice, New Zealand Journal of Industrial Relations, Vol. 21, No. 3, 1996.

Julian Portilla, What Exists is Possible: Stories from Conflict Resolution Professionals, Conflict Resolution Quarterly, Vol. 24, No. 2, Winter 2006.

Leonard L. Riskin and James E. Westbrook, Dispute Resolution and Lawyers, West Group, 1988 (part of the American Casebook Series).

Erin Ryan, Building the Emotionally Learned Negotiator, Negotiation Journal, April 2006.

Bernadine Van Gramberg, ADR and workplace justice: Just settlement?, Australasian Journal of Dispute Resolution, Vol. 14, No. 3, 2003.

John Wade, Mapping the Deceptive Dance of Hard Bargainers: What are the possible roles of mediators when supervising the dances of deception, delusion, and decision-making? Bond Dispute Resolution News, Vol. 19, May 2005.

John Wade, Strategic interventions used by mediators, facilitators and conciliators, Australasian Dispute Resolution Journal, November Vol. 6, No. 4, 1994.

John Wade, Crossing the Last Gap: Why it is Important, Australasian Dispute Resolution Journal, Vol. 6, No. 2, 1994.

Footnotes

[30] From a tear-off calendar ‘The 7 Habits of Highly Effective People’ for 22 May 2008.

[31] For a full development of these concepts, see Julian Portilla, What Exists is Possible: Stories from Conflict Resolution Professionals, Conflict Resolution Quarterly, Vol.24, No 2, Winter 2006, pp. 241–248.

[32] Employee Assistance Programme – a confidential resource paid for by the employer to help employees through various life crises.

[33] V. Phillips, Mediation: The influence of style and gender on disputants’ perceptions of justice, New Zealand Journal of Industrial Relations, Vol. 21, No. 3, 1996, pp. 297–311. See also Bernadine Van Gramberg, ADR and workplace justice: Just settlement?, Australasian Journal of. Dispute Resolution, Vol. 14, No. 3, 2003, p. 233.

[34] See Leonard L. Riskin and James E. Westbrook, Dispute Resolution and Lawyers, West Group, 1988 (part of the American Casebook Series).

[35] See for example Elizabeth Ellen Gordon, Attorneys’ Negotiation Strategies in Mediation: Business as Usual?, Mediation Quarterly, Vol. 17, No. 4, Summer 2000; and John Wade, Mapping the Deceptive Dance of Hard Bargainers: What are the possible roles of mediators when supervising the dances of deception, delusion, and decision-making? Bond Dispute Resolution News, Vol. 19, May 2005.

[36] For a more systematic approach see J. Wade, Crossing the Last Gap: Why it is Important, Australasian Dispute Resolution Journal, Vol. 6, No. 2, 1994, pp. 92–112.

[38] The status and respect that a Māori is given by the tribe, which, in employment, can be damaged by, for example, an unfair dismissal.

[39] J. Edelman and M.B. Crain, The Tao of Negotiation: How you can prevent, resolve and transcend conflict in work and everyday life, Harper Business, New York, 1993, pp 62–63.

[40] Dale Bagshaw, Language, power and mediation. Australasian Dispute Resolution Journal, Vol. 14, No. 2, May 2003, p. 130.

[41] J. Wade, Strategic interventions used by mediators, facilitators and conciliators, Australasian Dispute Resolution Journal, November Vol. 6, No. 4, 1994, pp. 292–304.

[42] Lim Lan Yuam, An analysis of intervention techniques in mediation, Australasian Dispute Resolution Journal, Vol. 9, No. 3, August 1998, pp. 196–205.

[43] Erin Ryan, Building the Emotionally Learned Negotiator, Negotiation Journal, April 2006, p. 209.

[44] Robert D. Benjamin, The Mediator as Trickster: The Folkloric Figure as Professional Role Model, Mediation Quarterly, Vol.13, No. 2, 1996, pp. 131–149.

Contemporary Mediation Practice

Employment Mediation: Opportunities and Outcomes

Introduction