Some Thoughts on Mediation with Employees and Difficult Mediators

These are two recent articles from the Program on Mediation blog from the Harvard Law School that I want to share with you.  One has to do with using employee mediation techniques for employees and managers and the other has to do with dealing with a difficult mediator.  I am suggesting you read these two short articles.  Given each I want to offer some comments.

In 1999 I went to mediation training at Hamline University Law School. I did not realize at the time but Hamline University Law School (now combined with another law school and renamed Mitchell Hamline School of Law) was and is one of the top 10 mediation programs nationally.  When I returned from training as the Assistant Director the first day back my Director asked me to mediate between two division chiefs.  They had a major budget impasse.  I call that baptism by fire.  It worked. He could not believe it.  After that he had me apply my skills in a number of areas in the district related to labor management, equal employment opportunity (EEO) and others.

In our district in St. Paul, Minnesota with on the order of 1,000 employees we had 30 EEO complaints, unfair labor practice and grievances.    In another district with on the order of 1,200 employees they had 300 EEO complaints, unfair labor practice and grievances.   I was sent there on a 4 ½ month detail to be the Assistant Director.   After a week of doing my regular job I said to the director that I could see several areas where I believe systems needed to be reviewed and I would recommend training all managers in mediation.  I asked if he would support me in trying to bring mediation training and mediation to this district.  He concurred and with weekly briefing on the progress with the EEO office, labor relations, human resources, the division chiefs and the union. 

Making this long story short in 4 ½ months the number of conflicts was reduced from 300 to less than 30.  When a short term acting Assistant Director leaves there is a coffee.  Normally about 15 to 20 people stop by and it lasts about an hour.  Some come to be seen by the Director and others are friends that the acting manager made over the time period.  For me that day over 400 people came and it took over half a day to shake their hands.  This moved me and changed my life. 

With a reorganization in 2000 I helped stand up a new part of the organization.  Over the next two years I put together training and a CD on mediation.  We trained all of the employees in my area in the organization in the art on mediation.  We closed more cases with less conflicts saving time (and money), increased the sense of employee empowerment and had less conflicts with customers.  I have been an advocate of mediation ever since. 

I would also note that there are three kinds of mediation.  These are facilitative (address only the issues), transformative (the goal is not necessarily to resolve the issue but to transform the relationship) and evaluative (what would happen if this case went to court).  Not all mediators agree that evaluative mediation is mediation and some see this as a pre-trial assertion. 

As a client based mediator that works in the facilitative mediation area primarily and occasionally works with transformative mediation, I find that by being client focused, developing a professional relationship, listening to the parties, and asking questions to ensure each party is being understood by the other results in good dialogue.  As a result it is very effective for the parties to come to an agreement that is mutually acceptable.  These are the keys in my mind.

Reading these two articles, I want to promote the use of mediation techniques for all employees.  Some will embrace it.  Some will accept it. Some will tolerate it.  For those that embrace it, mediation works wonders.  For those that accept it, they can see the benefits.  For those that tolerate it at least they have been exposed to something that may help them along the way.  Over time, they may improve their perspective based on the results seen from others use of the techniques learned. You have nothing to lose.  This is why I promote, practice and teach in this area.

Regarding the commentary associated with the difficult mediator.  It pays to do research up front. I don’t fully agree with the article. I find regardless of the situation the mediator has to remain strong and focused on the process. However, I disagree with the mediator being abrasive, dismissive or even rude.  The article offers good advice for someone that is stuck with such a mediator.  The better alternative from my 17 years of experience in this field is that the mediator needs have a professional demeanor, be client focused and work with the parties to enable them to come to a reasonable determination.  More work up front to find the right mediator is the key from my perspective.

Mike is a manager with over 25 years’ experience at all levels of management.  Mike provides services related to negotiation, mediation, and value added services (business valuation reviews, research credit advice, transfer pricing assistance, strategic planning and leadership development) to help clients and boards of directors on a wide variety of issues.  When not serving clients as a consultant or blogging, Mike is an avid writer, speaker and educator.  When not working Mike enjoys family, church, volunteering, and daily yoga, meditation and exercise.