Mediation in the workplace: It’s good to talk

Talk therapy encourages individuals to solve their problems by talking them through, but it also can also work for business and can save time and thousands of euro on legal fees.

People being people, there will always be disagreements. When things go wrong in the workplace, it can cost companies dearly in productivity and hard cash. Bringing the lawyers in is not necessarily the only way to find a resolution. Sometimes a softly, softly approach can be equally successful at catching the monkey.

Litigation is a high risk, high stress, often protracted, and usually expensive strategy. Mediation, by contrast, is a more low key intervention that is gentler on those involved but often equally effective in settling disputes in a timely and cost-effective way. Mediation does not establish fault, lay blame or impose a binding solution. Rather it uses talking to create an understanding between the parties and drive a voluntary, agreed solution.

Misunderstood

"I think mediation is largely misunderstood by Irish business," says Dermot McEvoy, a partner with law firm Eversheds, and chairman of the Irish Commercial Mediation Association. "It's not an either/or situation with the law on one side and mediation on the other. The law allows for mediation as part of its process. I think more companies should consider using it because it's a safe environment in which to talk. It's a bit like taking your kids to Jumpzone, where they can play as actively as they like because the walls are padded.

“In mediation the process is controlled by the parties involved so the destiny of the dispute is in their hands, there is no outsider handing down a decision,” McEvoy says.

“The parties reach a conclusion themselves with the help of the mediator and the outcome does not become legally binding until both parties sign up to it. Also, it is without prejudice to the parties’ rights, right up to the point when all parties sign a settlement agreement that documents the agreed solution. As such, nothing can be used against you in future litigation if the mediation is unsuccessful.”

Origins of mediation

The origins of mediation go right back to the 1600s when the Pilgrim Fathers got themselves into some sticky trading situations in the US. The courts did not always work and alternative approaches to dispute resolution such as mediation, arbitration and conciliation began to emerge.

Mediation became a feature of commercial disputes, especially in the construction industry, in Ireland around the 1980s, and in 2003 the Commercial Court recognised mediation as a legitimate form of dispute resolution. The publication of a new bill on mediation is currently awaited and it is expected to recommend and advocate the use of the process where disputes arise, before resorting to court proceedings.

“Mediation can be used across all sectors. It helps people to see each other’s point of view and to concentrate the mind. Ultimately it makes it far more likely that the parties can continue to work together afterwards. If a dispute is pushed all the way through the courts, that’s far less likely to happen,” McEvoy says.

Mediation works for both internal and external disputes and some companies have an in-house service. It can be particularly useful in internal disputes where organisations have a large number of employees spread across different locations.

Respectful

Teagasc launched its mediation process in 2009 and trained a number of people including the company's HR manager, Valerie Farrell. "The mediation service has resolved many interpersonal issues since it was launched," she says. "It is informal, quick, respectful to all and allows staff to deal with, in some cases, long festering issues with colleagues and get back to normal productivity at work. HR staff don't normally do mediation as we are generally involved in the referral and it would be a conflict of interest. But the fact that we have also been trained means we can explain the process to staff and managers."

Francis Collier, farm manager at the Teagasc facility in Grange, Co Meath, is an employee advocate at the company. "I am the main point of contact for employees with a problem," he says. "We have had about 18 cases since 2010 and in almost all of them, the mediation was successful.

Misunderstanding

“I am a big fan because I know it works. Very often things come down to a misunderstanding, where someone misinterprets something that was said or done. The person becomes highly stressed as a result, they stop talking to their colleague or manager and suddenly it’s full-blown conflict. In my experience, if you put those involved together with a neutral mediator, you will usually get a positive outcome.”

The cost of mediation varies but it is still a lot cheaper than resorting to the law, in most instances. Mediators charge in different ways, from hourly to daily to flat rates and may charge for preparatory work and expenses. There are a number of mediation bodies and facilitators operating here including the Mediators Institute of Ireland and the Irish Commercial Mediation Association.

Mediation does not work in every case and may not be appropriate for some. But even if it fails, it may well have clarified the issues at stake and made the process of moving towards some other form of resolution a lot clearer.