In our latest Guest Blog, we turn to the expertise of Giles Woolfson – a specialist in employment law accredited by the Law Society of Scotland and, importantly for us, one of the country’s leading minds in workplace mediation. Here, he offers his insight into how mediation works, what it offers and when it’s the right time to use it.
More and more people are talking about workplace mediation. However, even though businesses, HR professionals and employees know the word and have a rough idea what it means, there is generally a lack of understanding as to what is actually involved and when it can be put to greatest effect within the workplace.
Organisations will usually have formal disciplinary and grievance procedures. They are often the first port of call for problems within the workplace. It is important to ensure these procedures exist. However, very often these procedures will not be the best or most effective way for a workplace issue to be resolved.
Let’s take the example of a female employee who feels she is being bullied and harassed by her male colleague. When an allegation of bullying is made, the response from the employer will usually be to invoke a formal investigation, whether as part of a grievance process or disciplinary process. That is not an unreasonable approach to take, given that any allegation of bullying must be taken very seriously. However, different employees will have different perceptions of particular events which have taken place.
When employees are involved in a formal process they inevitably take defensive and entrenched positions. Disciplinary and grievance processes are adversarial. It will be up to somebody else to decide who is right and who is wrong. This could have serious consequences if an employee is dismissed. In other cases the ongoing working relationship after the procedure has concluded will still be damaged and in many cases unworkable.
So, how does workplace mediation differ from formal procedures? There are two key differences. The first is that during mediation the employees meet with and speak with each other directly. It is no longer an adversarial process. They have a unique opportunity to speak with each other and tell each other face to face what they want to say. This doesn’t happen in other procedures. Direct communication allows people to speak honestly with each other. This in turn significantly increases the prospect of the two employees having a better understanding of how they have got to that point and where the difficulties have arisen from.
The second key difference between mediation and formal procedures is confidentiality. An integral part of mediation is the fact that employees speak with each other in the strictest of confidence. Anything said during the mediation is not to be referred to outwith the mediation. This allows the employees to speak freely. They speak with each other, in the knowledge that what they say will not subsequently be used against them.
The mediator is also bound by confidentiality and will have had no prior involvement with the employees or the dispute itself. The mediator will establish trust with the employees and help to ensure that what each person is saying is being properly understood. The mediator will identify areas where they agree with each other, and sometimes the employees will realise that the underlying reason for their conflict is in fact some other person or event over which neither of them had any control. The reasons for conflicts beginning in the first place are often missed in more formal procedures. Mediation allows those underlying reasons to be uncovered.
Mediation will not be appropriate for every workplace dispute. Sometimes it will be necessary to take disciplinary action. Sometimes it will be necessary to follow through with a grievance process. Each situation is different. However, mediation is an option which can usefully be considered as one way in which difficult working relationships can be resolved at an early stage. It can also be very effective after a formal procedure has been concluded and the difficulties still exist.
Giles is a workplace mediator and an accredited specialist in employment law. He tutors in mediation for the Diploma in Legal Practice at the University of Strathclyde, and also tutors in mediation for the Department of Human Resource Management. You can find further information at www.workplacemediation-scotland.com