Estimated reading time: 7 minutes
Conflict is a part of life. I know we don’t always like talking about it, but that doesn’t change the fact that we have to be able to regularly deal with conflict. And the way we manage conflict in our personal lives might be different from the way we handle it professionally.
I like to think of conflict in sort of 3-levels. The first level is when you’re upset, angry, or frustrated about something but you know it’s temporary and you’ll eventually get over it. At level two, this isn’t a conflict that’s simply going to “go away” and you will speak to someone about what’s on your mind. Sometimes the conflict is resolved and sometimes it’s not. Which leads us to the final level of conflict. At this level, we know that we need to take action to resolve the conflict, which often involves getting a third party involved.
That leads us to today’s article. When we’re frustrated, angry, disappointed in a situation and looking to take action, one of the first things we might consider is litigation. But that’s not your only option.
So, I asked a friend and colleague of mine, Lori Adelson, Esquire, if she would educate us on mediation as a way to resolve workplace disputes. Lori is a certified mediator in the State of Florida and the U.S. Southern District. Lori started Approved Mediation to further her mission of helping people engage constructively in all phases of the conflict process and navigate conflict successfully, through mediation.
Just a reminder that since Lori is a lawyer, please don’t misinterpret her comments as legal advice. If you have any specific questions, you can reach out to her directly or contact your friendly neighborhood labor and employment attorney.
Lori, thanks for being here. Let’s start with a definition. What is mediation?
[Adelson] Mediation is an informal, impartial, confidential, and effective way to resolve a dispute. Mediation promotes the use of innovative and effective problem-solving and dispute resolution processes. It is cost-effective and far cheaper than the high costs associated with formal procedures. At the end of the mediation, if the parties have come to an agreement, that agreement is put in writing by the parties (or the attorney, if one is present). Once that agreement is written, signed, and dated, it becomes a legal, binding agreement that is enforceable in a court of law. The parties know they have an agreement they can rely on.
In the workplace setting, where you are attempting to resolve an internal dispute, such as a performance management issue, the agreement should be one that is easy to understand, and the actions are SMART (Specific, Measurable, Achievable, Relevant, and Time-Bound). You can get each person to sign the agreement and add weight and finality to the outcome and help increase the employee’s accountability.
How does mediation differ from arbitration?
[Adelson] Arbitration is less formal than a courtroom, but it is still a structured hearing process and can become quite costly since discovery is generally allowed. In arbitration, each party presents their full case. The outcome of the case is decided for them by an arbitrator. What is missing in that process is a mutual agreement or ‘meeting of the minds’. One side wins and one side loses. If the arbitrator does not agree with you, you lose.
From the organization’s perspective, why should mediation be a consideration?
[Adelson] Mediation is often a more productive approach at resolving workplace conflict than more formal methods. It is confidential and it can help improve trust and team relationships, especially if used to deal with conflicts promptly as soon as they appear. Generally, mediation is best used when a disagreement first arises, as the longer the dispute goes on, the greater the chances that people’s relationships will break down, or that they will raise a formal grievance.
Further, mediation saves time, money and minimizes hostilities while maximizing good-will and cooperation. The mediation process provides a positive environment and a pro-active problem-solving approach that allows the parties to create a resolution. It offers an effective negotiating process in a safe environment and avoids a win/lose or ‘all or nothing’ decision. The mediator facilitates the process and manages the conflict to avoid it escalating into a possible litigation (or arbitration) matter. It is future focused, working on problem solving and realistic and sustainable ways for the individuals to move forward and work professionally together.
Also, mediation increases morale, improves employee relationships, and helps to grow staff retention. It promotes productive and healthy working environments and shows a more mature workplace environment and understanding at a deeper level. This is especially beneficial in situations where the same people need to continue working in the same community.
Speaking of employees, why would an employee find mediation valuable?
[Adelson] Mediation is not, by its nature, meant to be adversarial. The goal is to come to an informed agreeable resolution. Mediation empowers employees to develop solutions to conflict that are tailored to their particular needs. It is a cost-effective, confidential, informal, and impartial process.
Is there a downside to mediation?
[Adelson] There can be some challenges to mediation since a mediation will only be successful if the parties are committed to a resolution, whether in litigation or the workplace.
For example, it may be a futile process if the parties are entrenched in a position and refuse to negotiate. If the parties strongly believe in their position, then mediation may not be the best answer. Likewise, if a party firmly believes that the other side is liable (or just wrong) settlement is unlikely to come to an agreement whether on monetary or non-monetary terms, so perhaps mediation is not the answer. Also, if a dispute is more about the principal than the recovery of money or some other non-monetary relief, mediation may not provide the desired resolution. Further, any important social or legal points will be lost in a confidential settlement.
Some special challenges in the workplace arise when an employee may feel that the employer has more leverage than they do and feel ‘forced’ into the process since the outcome may impact their employment status. Also, a mediator selected by the company may also appear at first blush to the employee to be biased since the company is likely paying the mediator. However, the ability to work through outcomes will ultimately empower the employee who had a hand in crafting the remediation.
However, an experienced mediator can often overcome many of these challenges.
Final question. If organizations want to use mediation, how would they introduce the idea?
[Adelson] If is to decide a workplace dispute during employment, most often the mediation provision is in the employee handbook, or other employment documents provided upon onboarding. It will likely be part of the performance management program of the company. There will usually be a mediation provision that provides guidelines for the process. If pre-litigation, the employee may have had an attorney send a demand letter, and through the attorney, the parties agree to mediation. If during litigation, while it is still a voluntary process, it will generally be Court ordered.
A HUGE thanks to Lori for sharing her knowledge with us. If you want to learn more about mediation, feel free to reach out to Lori directly via her website.
Organizations should spend time thinking about how they want to resolve workplace conflict – at every level. Because it’s going to happen. This isn’t about addressing every possible issue in a handbook or avoiding conflict and pretending it doesn’t happen. Managing conflict well says a lot about the organization – in a good way.
Image captured by Sharlyn Lauby while exploring the streets of Dallas, TX16