Students preparing for the world of workplace dispute resolution in years gone by might have learned the really useful skills they needed in military manuals such as the ‘Art of War’ by Sun Tzu!
The process was one in which one side prepared and launched a series of ambushes, initially repelled by the other side, but sometimes leading from skirmish to pitched battle, to outright war, (metaphorically speaking) if things got really bad.
Only at the point when it became clear that the battle would succeed in exhausting and damaging both sides would they seek the intervention of a third party, sometimes through ‘conciliation’, or eventually a form of adjudication (both part of the State dispute resolution machinery).
Through a combination of the conciliator’s skill, helped by a large dose of nervous and physical exhaustion a settlement would be reached (4 am seemed to be a good time) and all retreated to bed, tired and mostly unhappy, worried about how the ‘best available offer’ would look in the cold light of the following day!
This is a caricature, of course, and somewhat of an exaggeration, but only somewhat.
Its essential characteristics retained the ingredients of war making; brinkmanship, the pursuit of triumph, unswerving belief in the rightness of the cause and a determination to beat the other side into submission with glorious indifference to any ‘collateral damage’ that might result.
Then the era of individual employment rights brought new challenges, especially in the context of demanding principles of fair procedure. These seemed to result in the process becoming more important that the outcome, and this calcification of dispute resolution procedures came at the expense of early or amicable resolution.
When one promotes one of the general advantages of mediation as being the maintenance of relationships between the parties the importance of this in workplace settings is much more important.
In the commercial context it may mean that people who have done business together in the past will continue to do so, will not insult each other as they pass on the fourteenth tee or at worst will not seek to actively damage each other.
In a workplace setting where relationships are a good deal more intimate the importance of this is more significant; two teachers in the same staff room, two retail assistants behind the same counter, two doctors in the same ER, two paramedics on the same ambulance.
These relationships are at such proximity that the notion of maintaining relationships has an added importance beyond that needed in a commercial situation.
It is in these settings that the option of mediation offers real benefits.
And so it would seem obvious that this will be embraced by disputants and their representatives with enthusiasm!
Perhaps not!
The welcome provisions in the new Mediation Bill requiring lawyers to advise clients of the advantages of mediation are only one half of the picture.
In November 2012 at a CIArb seminar in Dublin on the topic ‘ADR in Australia; lessons for Ireland’ the then President of CIArb Professor Doug Jones said that one very big lesson to emerge from the Australian experience was that ADR vehicles; mediation, arbitration etc are primarily client-driven.
Clients tell lawyers they want mediation or other ADR vehicles, he said, not the other way around.
When the ‘Automatic Referral to Mediation’ Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998) showed that in approximately 80% of cases one or both parties objected to it.
“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’
Paul Randolph, New Law Journal April 2010
A concrete example of this in the workplace is in the following case .
Some workplace policies on mediation are clear enough. Not only must the option of mediation be offered (in Dignity at Work cases, in particular) but the advantages of mediation should be fully understood by the parties so that they might make an informed decision such as in the following extract.
Both parties will be requested to consider the use of mediation and every effort will be made to secure their agreement. An appropriate person who is experienced or well versed in mediation will meet with each of the parties separately to explain the mediation process and its benefits. This person may be from management, the unions or the agreed list of health service mediators.
It is vitally important that steps like this are fully understood and implemented as the merits of mediation are, in fact often poorly understood in general outside the mediation community as the research by Professor Genn indicates. Even allowing for some change since, and more will hopefully follow the enactment into law of the Mediation Bill there is no room for complacency.
Given that the word ‘mediation’ is in relatively general currency this may obscure the strengths of what is a very powerful dispute resolution process or lead to unfounded presumptions about how its value.
Despite the foresight of the authors of policies on Dignity at Work in anticipating these difficulties by inserting a requirement that parties be met by a person experienced or ‘well versed’ in mediation can we be sure it always happens?
Trade unions, accustomed to a traditional way of doing things and the ‘conciliation’ approach of the LRC may also have much to learn about facilitative mediation. It is all too easy to view the mediation option now increasingly being provided for in workplace procedures agreements as a stepping stone on the route to the Rights Commissioner or EAT; just one station on a railway journey where the journey is more important than the destination.
Recent press reports referring to recommendations of a ‘mediator’ in the redundancy talks at one of the leading banks will jar on the ears of a trained mediator.
This may be understandable but it is not helpful in building an appreciation of the powerful tool that mediation is; or in developing a move away from confrontation, hidebound procedures and towards consensual dispute resolution. (The CIPD reckons that HR practitioners with mediation training are 80% more likely to resolve a dispute than those without).
This it can do by ‘digging in’ to the real causes of a party’s grievance, bringing unarticulated material to the surface and attempting to resolve it. Thus it can give meaning of real substance to a phrase such as ‘giving the person their day in court’.
Except that it is not court but a place where a person’s need to be listened to can be met as a first step in resolving their issues.
Research shows (Law Reform Commission report on Mediation) that often parties are forced into litigation (and its equivalent in the workplace) because no-one would listen to them or offer them any apology for their sense of grievance. In the workplace this is often because of a slavish dedication to process over resolution.
Herein lies another of the strengths of the mediation process; it can adapt in a flexible and pragmatic way to the needs of the parties and their problems. The mediator creates a ‘safe’ space, but within an overall framework that has a shape and a structure where the parties can negotiate a mutually acceptable outcome.
From a practitioner’s point of view it might be assumed that when parties indicate initial willingness to attend mediation this is half the battle. Even those who do opt for it may still harbour incomplete or inaccurate notions about it.
In these circumstances a pre-mediation step is essential, ideally not an hour before the main mediation but at sufficient remove to enable the mediator to fully explain the process and the parties to digest it.
In this respect the task of the workplace mediator is a challenging one.
In commercial mediations nothing quite concentrates the mind like the daily costs of running a High Court action! This may be a negative reason for entering mediation but it is a powerful one.
In the workplace, disputants can opt to allow their grievances to simmer, occasionally boil over, but in any event remain unresolved in an atmosphere of sullen stalemate, which impacts on colleagues, organisational outputs, and of course themselves.
HR practitioners and union officials locked in the highly process-driven structures that currently pass for dispute resolution mechanisms in the workplace may struggle to break free of them, even where they want to, which is not always. They must really mean it when they agree to enter mediation, not see it as just another stage on the journey to adjudication.
This may be the era of mediation. But what is required is a paradigm shift in the way dispute resolution is seen and practised currently in Irish workplaces so that the art of dispute resolution can be clearly distinguished form the Art of War.
Pat Brady
Accredited Mediator
June 10th 2012