In some instances, mediation is used as an early intervention tool to resolveconflicts before they reach any formal stage in a structured complaint process.Mediation is also used later down the road, where disputes have not beenresolved internally and have become the subject of outside agency and/or courtaction.
Mediation is a process. It is problem-focused and resolution-oriented. Theframework of mediation is cooperative, rather than adversarial. It focuses ondeveloping mutually identified solutions rather than seeking a conclusion whereone party is determined to be right and another to be wrong. It allows forcreative explorations and supports the autonomy of those in conflict.
A fundamental assumption of mediation is that the best people to findsolutions to conflicts are the people who are in conflict. Thus, a premise ofmediation is that lasting resolutions occur when participants are empowered toreach their own results.
Understanding the general framework and philosophy of mediation models willclarify the reason for its usefulness in resolving workplace disputes andemployment claims.
The role of the mediator
A mediator is a third party who is not involved in the conflict or dispute. Amediator has the sole task of designing and managing the process that is used bythe disputants to reach resolutions. A mediator is neutral as to the outcome ofany given situation. A mediator does not decide who is right and who is wrong,and a mediator does not render a decision of any kind. A mediator isn't a judgeor an arbitrator. A mediator doesn't decide who is truthful, or credible.
Rather, a mediator is a process manager. It is the mediator's job to create aprocess that is fundamentally fair to all disputants - to ensure that eachdisputant is fully seen and heard. A mediator helps disputants identify whattheir real needs are (and often they're multiple) in any given situation.
The mediator helps to clarify what the possibilities are for meeting thoseneeds, guides disputants in exploring possible consequences of a range of viablechoices, and ultimately identifies and records agreements reached by thedisputants.
The trend toward transformative mediation
Several different mediation models exist. The one most highly used as anearly intervention tool to resolve workplace conflicts, including but notlimited to claims of discrimination and other civil rights violations, is thetransformative model of mediation. In the transformative model there are twoshared goals - one is to resolve the actual conflict or dispute, and the otheris to bring about a difference in the relationship between the disputants.
The transformative model has gained significant recognition in recent yearsdue to the support and use it has received by the early mediation interventionprogram initiated and used by the U.S. Postal Service. That program, calledREDRESS, creates an option for an employee to voluntarily use mediation toresolve any conflict that is part of an EEO complaint filed internally withinthe postal service.
The REDRESS program uses private, outside, experienced mediators to serve onits panels. To be on the postal mediation panel a private mediator must haveexperience doing mediations and must be trained in the transformative model. Themediator is paid on a per case basis. Mediations occur within two weeks of thefiling of a complaint, and they are user friendly, being held on the tour(shift) of the employee who files the complaint.
Postal Service statistics compiled through independently monitored exitsurveys show a resolution rate that exceeds 70 percent, and of the 30 percentnot resolved in mediation only 15 percent actually move on to furtherproceedings. This program also tracks more than a 98 percent satisfaction rate,by both management and line staff, with mediators and the mediation process.REDRESS's track record clearly shows a decrease in repeat filers.
Benefits of transformative mediation
Mediation helps resolve conflicts early on, and that early resolution canlead to significant cost savings for employers. The potential for cost savingsmakes transformative mediation, and mediation in general, increasinglyattractive to private companies. As a result, many of these companies are nowmaking an effort to create their own programs similar to the postal serviceprogram. Some companies have developed programs that are only available toexempt employees, while others are endeavoring to develop programs that areavailable for all levels of employees.
Finding skilled outside mediators to serve as neutrals can be a critical partof developing an internal early intervention program. As more mediators aretrained in the transformative process, this task is becoming easier. In fact,some transformative mediators not only provide mediation services as part of aprogram; some mediators use their skills to work as consultants to companies tohelp develop internal programs and processes that work.
Developing your own internal program
There are many phases to developing an internal program and many componentsthat must be put in place. It is best to begin with an assessment to determinewhat kinds of disputes arise, whether there are any common patterns, whatusually happens to those disputes, and what they cost a company in both tangibleand intangible costs.
A process for requesting mediation must be put into place. Forms must bedesigned and program rules such as those related to confidentiality must bedeveloped and processes for tracking outcomes need to be created. Don't do italone. A professional mediator can help you create your process and forms inways that will be useful.
Decisions identifying the mediators who will be used and the methods ofselection also need to be put into place. Internal mediation programs work bestif supervisory level employees are, themselves, trained in the transformativeprocess. This if usually done through the combined effort of in-house personneland the mediator consultant who helps the company develop its internal program.Typically, companies may want to run a pilot project to test their mediationprogram and work out any snags.
Key people must be identified to work internally with the program and act asliaisons with outside mediators. While the development of a program requirescareful planning and a commitment of funds for development, the reduction ofworkplace conflict can result in substantial savings over the long run. Earlyintervention programs are also tools of litigation prevention. As a result, notonly are the out-of-pocket costs of litigation saved; losses that often comefrom distraction and unavailability are managed and controlled.
Even with the best of programs, all disputes and claims are not resolvedinternally. Some move on to more formal complaints with agencies such as theEqual Employment Opportunity Commission, or comparable state agenciesresponsible for investigating such claims. If these actions are not resolved atagency levels they move to more formalized litigation in federal and statecourts.
Mediating disputes and litigation
By the time employment claims and civil rights actions reach agencies and thecourts businesses most often have legal counsel involved. Lawyers have becomeincreasingly informed about the potential benefits of mediation. Many lawyersand insurance companies are now turning to mediation as a beneficial process forresolving claims and disputes while avoiding lengthy trials, minimizing adversepublicity and managing often uncontrollable costs.
Although this is not early intervention mediation, many employment claims andcivil rights actions have been resolved outside the court system by usingprivate mediators to facilitate meetings between the disputants and theirlawyers.
These mediation sessions typically occur in varying formats. Sometimes alldisputants and their counsel are present for entire mediation sessions, while atother times the mediator will conduct separate "caucus" sessions.These mediations result in a written memorandum put together by the mediator.This memorandum outlines and clarifies all the terms the parties have reached.Legal counsel then typically forms these understandings into a bindingagreement. This binding agreement can be done at the mediation session orseparately by counsel once the mediation is complete.
Does every case end up getting settled in mediation?
No, however lawyers find that even if full settlements aren't achieved,mediation often helps to clarify and isolate issues. Further, many smallerissues existing within the context of the case are resolved, and the issues leftfor actual trial are narrowed. Many times the issues that were not resolved inmediation are ultimately resolved prior to final litigation. It is not uncommonfor the parties involved to attribute these later settlements to seeds that wereplanted while the parties were in mediation.
Confidentiality and finality
Confidentiality is almost always a key component of all mediations whether itis an early intervention process, or a process used while cases are pending inlitigation. This promise of privacy is often a key point that inspires people touse mediation.
Although people cannot be compelled to reach settlements, resolutions reachedin mediation are typically final. There are no appeals from mediation. Whenmediation is successfully completed, the case is over. Again, this sense ofcompletion is something that draws people to use the mediation process.
Is mediation right for you?
Obviously, using an outside private mediator, whether for early interventionor post-litigation mediation, has a cost. Most private mediators charge anhourly or daily rate for their services. These rates can range from $600 per dayto in excess of $3,000 per day. However, most mediation is resolved within aday, and while there are always exceptions, most typically don't exceed two orthree days.
Mediation becomes a very desired and cost efficient alternative for those whomake a realistic assessment of the potential tangible and intangible costs thoseconflicts, disputes and certainly lawsuits bring. The earlier mediation is usedas a tool of intervention the greater the potential cost savings. And, when thetransformative model is used, and relationships themselves are truly clarified,ongoing conflict between the individuals that often spills over into the workunit is managed and relieved. The savings that comes from this highlyacknowledged intangible cost could be significant.