Many organizations have considered trying to resolve disputes with mediation by using internal resources and staff rather than external fully independent mediators. Proponents argue that the cost will be lower, that mediators will know more about the organization’s operations and will therefore be able to assist disputants more easily (for instance with information about internal resources), that resolutions are more likely to be practical for the organization, that follow up systems will be easier to implement and monitor, and that increased access will allow more use of mediation, greater acceptance of mediation and better conflict management skills generally in the organization. Those concerned about this approach argue that without true independence mediations will not be as effective because disputants will be concerned about potential breaches of confidentiality, about the interests of the organization being more important than those of the disputants, and about suppressing widespread complaints with ad hoc responses.
The “ideal” mediation process has a number of characteristics: it is party-centered and voluntary for the parties in both deciding to attend and whether to settle, the mediator is fully independent and impartial, the parties have sufficient information to make good decisions about resolution, and the process is confidential and without prejudice for the participants. In designing any mediation system, choices must be made that will affect the “ideal” mediation process: in designing internal mediation systems, designers must strive to maintain as many of the ideal characteristics as they can and mitigate the concerns to the extent possible.
People looking to create a mediation system should consider design issues from three perspectives: impact on participants, mediator, and outcome. For participants: will they feel the process is effective in resolving the dispute, respecting their privacy, and in limiting the risk of causing greater damage to their relationships and legal position? For the mediator: will the process allow the mediator to work effectively, act in an impartial manner, and not be in effect an interested party acting on behalf of another entity? In regard to the outcome: will the final decision be that of the parties, and can they reach it free of inappropriate pressure from the process or others?
For an organization considering an internal mediation process, assuming the benefits are accurately stated, maximizing the “ideal” characteristics can be achieved in the following ways.
First, clear policies should be drafted that set out what the process is, what disputes it will cover, what limitations it may have in terms of outcomes (e.g., any outcome that requires an operational change will be subject to management approval), what protections it will include for participants and the mediator, and how records (if any beyond those legally required) will be kept and who will have access to them. Communication and education about the system should address the concerns of potential participants and the organization must show itself to be committed to the principles of the process.
Second, policies and design should address the major concerns of impartiality and confidentiality explicitly. For maximized impartiality, confidentiality, and self-determination, for instance, a pool of internal mediators can be established from various departments, and a rule instituted that the disputants may choose any mediator so long as he or she is not in the same department as any of the disputants.
Third, confidentiality should be assured by having participants explicitly sign a confidentiality agreement, and by having the limits of confidentiality explained. Within an organization, confidentiality may have different limits than in say the litigation context. For instance, behavior that is contrary to organizational policy, if disclosed during the mediation, may be subject to discipline or other sanctions and the mediator may be under an obligation to report it. For the parties, the choice to disclose information can therefore be made consciously with full knowledge of the risks: this approach preserves their autonomy, and allows the mediator to fulfill a neutral role within the limits of the organization’s rules.
Fourth, the parties and mediator must understand the limits of their respective authority and roles in the process. As examples, parties may not have the power to implement changes in their workplace without managerial action; personnel records may require some notation about steps that people have committed to implement so that managers will be able to support the changes and any time frames that have been established can be respected; reports may have to be made or records kept for statistical or management or supervisory purposes in the event a participant changes positions or a new manager becomes responsible for the affected staff. Any and all of these terms may be acceptable: the significant point is to make sure all terms and expectations are known as parties enter the process, so that the credibility and utility of the process will be maximized.
Finally, of course, design is only the beginning; use of the process must be monitored, its effectiveness assessed and improvements implemented to make it attractive and effective as a way to resolve disputes at minimum cost to an organization.Frank Handy :: About Author :: Email