Ten tips for mediating employment disputes: the tips

To illustrate these tips, I’ve previously posted a fairly typical whistleblowing scenario. I think the scenario provides useful context, but you can skip it if you like. In the tips below, O is the organisation and E is the employee.

Obviously, if you’re going to reach a settlement, you’ll want the terms to be as favourable to you as possible. However, if you merely focus on what your side needs to get out of the mediation, you’re unlikely to get very far.

My tips for parties (and advisers) mediating these kinds of disputes are:

1. In advance, identify strengths, weaknesses, opportunities and risks on both sides. Be as honest and realistic with yourselves as you can about your own side’s case and the risks of not settling. Use the uncertainties in the case as a lever for settlement - on both sides.

2. Focus on the future – again from both sides’ points of view. For example, what is the potential impact on E’s career and/or health? What are the risks to O’s regulatory position or reputation? How might settlement mitigate these issues?

3. Make an outline plan for the mediation, including the points that are important to you and concessions you’re prepared to make. Identify potential concessions that may be valuable to the other side but cost you little or nothing. Think about offering up some small unexpected benefits at an early stage. Do not merely focus on financial issues.

4. Even though you have an outline plan, be ready to listen and adapt. Be genuinely curious about the other side’s interests and worries. Show that you are really listening. Ask questions to gain understanding rather than to undermine. Breakthroughs can arise from unexpected sources. For example, in one mediation, the acknowledgement of the impact of an employee’s bereavement was key – even though the employer hadn’t known about the bereavement before the mediation.

5. Make sure that the necessary people on your side are in the mediation or (at the very least) readily available. For example, O’s finance director may need to be present or available to authorise a financial settlement. In view of the health concerns, E may need somebody present who can provide appropriate support.

6. In advance of (and during) the mediation, give the mediator as much useful material as you can, confidentially if you prefer. For example, O may have information from a confidential source that E is in the late stages of an application for a senior role at a competitor. Or, E may have information that another employee has a similar case against O.

7. Avoid merely attacking the other side’s perceived weaknesses. This is likely to lead to a reciprocal, and unhelpfully aggressive, counterattack. For example, for O to bang on about E’s perceived poor performance is likely to lead to a flat denial from E and a fruitless argument about the reliability of O’s performance assessment processes.

8. Don’t try to win the arguments (this one can be difficult for lawyers). Cross-examination is unlikely to be helpful. Acknowledge that there are some areas in which you’re never going to reach agreement, but which should not stand in the way of settlement. For example, a settlement would not necessarily have to deal with the issue of E’s level of performance.

9. Identify common ground and build on it. For example, O might agree that E did raise some valid issues (even though in O’s view the issues were relatively minor). With work on both sides, this could lead to an agreed position as to how the internal and external communications around settlement should be dealt with.

10. Try to build constructive momentum. Look for ways to help the other side out of holes. For example, E might be concerned about a regulatory issue potentially affecting his personal position. O could help by bringing a mutually trusted senior compliance manager into the conversation to explain the position and answer E’s questions.

Mediation has a remarkable track record of finding mutually acceptable solutions, particularly to employment and workplace disputes. There’s no simple formula for success, but adopting some or all of the above suggestions will help to maximise your prospects.

Image: Walter Baxter / Starlings over Gretna / CC BY-SA 2.0