Mediating the Organisational Maze

by Fiona Colquhoun

First published in January, 2018

This article consists of contributions from Fiona Colquhoun (Principal mediator at CEDR), Andrey Fiddy and Yoachim Muller, providing valuable insights on how mediation can help to embed a positive work culture within an organisation.

“Every human has four endowments – self-awareness, conscience, independent will and creative imagination. These give us the ultimate human freedom…the power to choose, to respond, to change.” Stephen Covey

Change is a fact of life. Many find it stimulating, refreshing and constructive, but there can be times when change is challenging, tiring and not to our liking. The fourth event in CEDR’s Mediation Matters focused on how mediation can be used as a tool to improve organisational life and how mediation can help to embed a positive work culture within an organisation. Chaired by CEDR Director and Mediator Fiona Colquhoun, the group of 30 HR Directors, Managers and Lawyers, heard from panellists including Sejal Raja, Partner and Head of Employment at RadcliffesLeBrasseur; Derryth Wright, CEDR Mediator and Health & Safety and Wellbeing Manager at Norfolk County Council; Patrick Gottry, CEDR Mediator and Principal, Employee Relations at the European Bank of Reconstruction and Susanne Schuler, CEDR Director of Training and Consultancy.

Corporate Warzones

Conflict is an everyday part of work and life in all organisations. Broadly conflict is described as disagreements, difference, disputes, or difficulty between people whether it is collective or group or individual. People invariably I see the same issue very differently, which can be rewarding and fun, but it can also be stressful and the cause of discontent. While the benefits of constructive conflict can sometimes drive innovation, new ideas, developments and more optimum outcomes, if conflict is not anticipated and managed appropriately, hostilities can ensue, vendettas may be waged and litigation or legal warfare commenced.

Managing conflict or resolving disputes?

The panellists discussed the trend away from reactive approaches to dispute management towards more proactive approaches to conflict management. Often workplace conflicts start small. If conflict is left unchecked it can become negative very quickly and individual motivation, engagement, efficiency and performance all deteriorate. As someone commented to the authors of this article recently, “I’m glad you asked when it started, as 7 years ago I was promised…”

However, not all workplace conflict, such as friction between colleagues, leads to full-blown disputes about legal rights, typically channelled through rights-based grievance procedures. The reality is that many conflicts and differences are forgotten about, ignored and accommodated in the everyday task of keeping up with organisational priorities, changing agendas, workplace politics, and ways of working. Early intervention is key as many situations need proactive management of the tension or conflict situation before it emerges into a dispute. While the intervention required can vary depending on the specific situation, the use of mediation skills to hold “facilitated difficult conversations” or similar, is a critical tool to assist individuals and organisations create solutions to problems through a supportive framework.

Frameworks: Adapting the mediation process 

Due to the flexibility of the mediation, the process can be adapted depending on the specific situation, issues and considerations that are relevant. There are a variety of questions that might be asked to help to determine a course of action: We list some of them. What is the type of dispute? How large is the aggrieved or claimant group? Who is or needs to be involved? What processes can or should be used in conjunction with the mediation (e.g. coaching)? What should the intervention be called (e.g. facilitated conversation or mediation?)? How should the intervention be conducted? Where should the mediation take place? When should the mediation take place? What materials are required before the meeting? What ground-rules are required? How does engagement really work and an outcome be sustainable? What does the organisation need to learn from this experience? What information is captured and how is it stored?

One of the strengths of workplace and employment mediation, as has been considered by previous Mediation Matters articles, is the level of input and control, parties have over the process and final decision. It is not a judgement or determination imposed on anyone.  Commissioners of the mediation also need to consider is whether the appointment of an internal or an external mediator is more appropriate depending on the specific situation and context.

Benefits of a mediation scheme

While there is not a one-size-fits all approach when introducing mediation into an organisation, there are some key considerations. The first is whether to have a mediation scheme and if so, is it an internal, external or blended model. One approach is to introduce an internal mediation scheme, where staff are trained to act as mediators and lead awareness activities on an ad hoc or full-time basis. The second approach is to have an externally run and administered scheme, run by an organisation such as CEDR, where disputes are referred to it. The third and arguably the best approach is to have a number of internally trained mediators to act on either an ad hoc or full-time basis, who are in turn supported and provided with continuous professional development by a mediation organisation. In such instances, the mediation organisation would also provide a selected panel of ‘external’ mediators to act in disputes when there are concerns about experience, credentials, neutrality and confidentiality, typical in many employment mediation cases.

As the event captured, there are a number of benefits of proactive conflict management and mediation schemes including:
Cost:
  • Long-term savings on in time and money litigations, disputes and grievances, etc.
  • Employee retention and well-being leading to less recruitment costs, less sickness absence and increase in productivity.
  • Reinvestment of saved money.
  • HR costs distracted from core business can be reinvested in their strategic role.
Reputation:
  • Attracts high-quality staff to the company.
  • Better use of donation or taxpayer money.
  • Influences Company Culture.
  • Clients benefit: Brand identity, perception, keep clients (continuity & turnover).
Employee well-being:
  • Resolves conflicts early.
  • Reduces stress, mental strain and difficulties for employees.
  • Motivates and engages employees in collaborative working
  • Has clear structure of conflict resolution process, fair for all and transparent.
  • Offers an open environment to air concerns, or for whistleblowing.
  • Allows for restoration relationships quickly, to avoid resentment from spiralling and people getting entrenched.
  • Improves community feeling based on values of respect, dialogue and support.
  • Provides a process giving equal power and responsibility to those involved.

Case Study: Norfolk County Council

Need:

Norfolk County Council wanted to embed mediation as part of the Council’s continuous improvement in the delivery of its services. With a headcount of 14,000 and a budget in excess of £1 billion, in 2013 the Council approached CEDR to assist them to introduce a mediation scheme.

Solution:

CEDR worked with the Council’s in-house Organisational Development professionals, to design and deliver a series of workplace mediation skills training sessions and consultancy advice with regard to integrating mediation into the culture of their organisation. Key to this was the development of the business case for mediation which was agreed at the top level of the organisation.

Impact:

Pioneered by the Council’s Well-Being and HR Team, mediation had been integrated into organisational policies and procedures assisting in significantly reducing the number of grievances.

Case Study: Bank

Need:

The cost of conflict for a typical workplace dispute was estimated at being €600,000 in legal fees, an exit package being the equivalent of 3 years of salary and 1000 hours of management time.

Solution:

In coordination with the Bank’s Employee Relations and Talent Development teams, CEDR consultants designed a multi-staged training programme with the objective of enabling employees and managers to hold Courageous Conversations in order to prevent, manage and resolve conflict when it occurred.

Impact:

The training has been running since 2009 and is a mandatory training course within the Bank. To-date about 34 sessions have been delivered in addition to a number of HR Business Partners and Specialists undertaking CEDR’s full mediator skills training course. The practice of mediation has also been utilised to manage and resolve conflict and has also been integrated into a selection of Bank policies.

Specific challenges for the mediator when mediating in the workplace
In workplace and employment disputes there are often various dynamics that the mediator needs to be aware of. Some of the main challenges include the perception of the mediation process and the impartiality of the mediator and confidentiality – what is shared with the organisation and what is not.
Impartiality and perception of the mediator and mediation process
Depending on the approach used for a mediation scheme, there may be concerns as to the impartiality of the mediator. Typically an ‘internal’ mediator is an employee of the organisation and may be known, have a working relationship with them, be on the company’s payroll and be part of the company’s hierarchy. All these aspects will not only influence the way he or she is perceived, but also the mediator’s own perception of the conflicts. Having an existing history with the employees and the organisation, the mediator will need to always be alert to their own bias and its implications, and behave in a way that will safeguard this.
Similarly, an external mediator may sometimes be perceived as an “agent” of the company by its employees and be considered biased as he or she is mandated and paid by the organisation. However, this is usually countered by an external mediator’s experience and credentials. Whether or not an mediator is internal or external he or she must always work to show professionalism, neutrality and its independence. It is essential that the mediator establishes confidence, trust and reassurance early on, and behaves in an entirely impartial manner.
Considerations on Confidentiality
For both internal and external mediators, confidentiality is also an important challenge when mediating in the workplace. Participants in mediation will often seek reassurance on this matter. The fact that the mediation takes place will sometimes need to be confidential, meaning there will have to be a dedicated space, preferably outside of the usual working environment. There also needs to be clarity and agreement on who in the organisation knows about the mediation taking place and its potential outputs. Often the terms of a ‘settlement agreement’ or an agreed resolution such as a change of working practices or new ways of working together i.e. an agreed modus operandi need to be communicated to others. In some cases there are follow up actions post mediation, which someone from the organisation needs to monitor or be involved with. New issues may emerge so mediators need to be able to think about confidentiality pragmatically, but always ask the participants if they have permission to disclose information.
Next steps for mediation in organisations 
In its 28 year history, CEDR’s mediators have always worked in organisations and dealt with employment and workplace disputes. CEDR has also always trained mediators from employment and workplace backgrounds. Today the spectrum of cases has become even more challenging and diverse. Organisations have always had conflict and always will, but in the last decade as businesses have become more aware of the mediation process, they have used it effectively to enhance management capabilities and to make the workplace far more collaborative. Most importantly though tremendous costs have been saved, relationships repaired, and those organisations which started to mediate years ago with perhaps 2 or 3 cases a year have developed a constructive way of doing business. These organisations have developed mediation with not only their employees, but other stakeholders as well including clients and suppliers. We can all safely say that mediation is here to stay.

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