Mediation - How can it help?

We live in an increasing litigious society – where one of the first responses to an issue or incident is to sue the other party. This attitude is sometimes aided by changes to legislation such as the new General Protection and Adverse Action provisions in the Fair Work Act 2009 that provide individuals with enhanced access to tribunals and courts.

And there are times, for sure, that the issue at hand is so significant, or the principles so important that taking formal legal action is the most appropriate course of action. But there are many instances where parties to litigation find that both the process and the end result is expensive, wearing and more consuming than the issue they were trying to resolve.

Alternative dispute resolution is a way for parties to overcome their differences without resorting to legal action. Mediation is one such form of dispute resolution, which is often surprisingly effective in resolving employment related matters.

Mediation is defined by the Federal Court as "...a structured negotiation process in which an independent person, known as a mediator, assists the parties to identify and assess options and negotiate an agreement to resolve their dispute. Mediation is an alternative to a judge imposing a decision on the parties..."

A typical process may involve an independent mediator meeting with each of the parties independently, and then bringing the parties together to reach an agreement or resolution to the issue.

In cases of harassment and/or bullying it is necessary to determine the facts and clearly establish what is acceptable and unacceptable behaviour but subsequent mediation is often effective in reaching agreement about how to normalise the workplace after investigation of the complaint.

Why should organisations consider Mediation?

• The process provides a safe environment for one or both parties to let the other know the impact of the behaviour or incident on each other. Often, an acknowledgement of this impact by the other party is sufficient for the aggrieved party to move on and put the matter behind them and for the perpetrator to understand the impact of their behaviour on others.
•  It allows for a negotiation or settlement to an issue where the matter might not strictly be about the law but nonetheless is causing angst and disruption at the workplace.
•  In situations where there is a language barrier or where there is a power imbalance; the use of an impartial third party helps to provide a balanced view.
•  It is almost always considerably cheaper than any form of litigation and much less time consuming for those managing the issue internally.

Considerations for successful Mediation

For mediation to be successful, ideally both parties have genuinely bought into the process from the beginning. In the real world however, there is often one party who is more grudging around participating in the process, careful consideration needs to be given to managing expectations and promoting the benefits of the process to the parties from the outset.

Careful thought should be given to the location and timing of the mediation, and the appointment of the mediator. The mediator should be experienced in a variety of different workplace related issues, be impartial and trustworthy. The mediator also needs to be able to quickly establish empathy with the parties to enable honest and open dialogue.

Often resolution of grievances and complaints can be as simple as allowing the aggrieved person to be heard and acknowledged. At either end of the spectrum, mediation provides a useful alternative to tribunals, disciplinary processes and courts. Resolution reached by agreement has a much better chance of being implemented than one that is imposed upon an unwilling party.