What is mediation?
Disputes occur in all aspects of life, from our personal relationships to professional – people get under each other’s skin. The Australian Mediation Association estimates that in the workplace over 65% of performance problems result from strained relationships. The stakes are much higher for employers, as their livelihoods are on the line if a dispute turns costly. Mediation is an alternative dispute resolution process that is vastly different to the traditional forms of resolving conflict, arbitration and adjudication. It is a voluntary process for all parties, whereby a dispute or disputes are jointly explored, with the goal of individuals reconciling their differences. Small Business BC describe mediation as an alternative to costly litigation, offering businesses a less expensive and quicker way to resolve disputes that also aims to preserve relationships.
What distinguishes Mediation from other forms of dispute resolution?
Many believe mediation is similar or the same as the processes of negation, conciliation and arbitration, but it is in fact quite different. Mediation differentiates itself by being a process where an experienced, neutral third-party is present (the mediator), whose primary focus is to assist parties to construct a process within which they can negotiate and reach an agreed outcome.
In terms of conciliation, mediation differs itself by the mediator themselves being a neutral third party, to the mediation process. A conciliator is used when parties choose to go through conciliation and is often used in tribunals and courts where rights are an issue. Conciliators may not necessarily be neutral, unlike mediators.
Finally, mediation is a process where all parties work to reconcile their differences and reach an outcome or agreement that all parties approve of. Arbitration on the other hand requires both parties’ consent to the intervention of a third party whose judgment they must agree to accept beforehand. To explain this further,Allen & Allen Lawyers state that “arbitration is binding, both sides give up their right to an appeal. That means there is no real opportunity to correct what one party may feel is an erroneous arbitration decision.”
The attributes of mediation that distinguish it from other forms of dispute resolution processes is what makes it the best option for workplaces looking to reach an outcome that aims to please all parties as well as reconcile any differences.
Understanding the Mediation Process
Before understanding the benefits mediation can have on a workplace, employers must understand the process to see if it is suitable for their business.
The mediation begins at a venue convenient to the parties such as a conference room at a hotel. Each party has their own room as well as a separate room for joint meetings. The mediator then listens to everyone’s point of view, talks to the parties privately if need be and together guiding them towards a settlement that all parties are happy with.
Currently it can take as long as a year to get a court date, and multiple years if a case is appealed. Mediation often provides a timelier method of resolving disputes.
Why businesses should opt for mediation as their primary form of dispute resolution?
Choosing to utilise mediation in the workplace can have many benefits to both employers and employees. Below are some of the positive effects mediation could have when dealing with conflict in your workplace:
- Cost-effective alternative for businesses than other forms of dispute resolution (e.g. litigation).
- High rate of compliance as parties who have reached their own agreement in mediation are generally more likely to follow through and comply with its terms
- Saving time for businesses and employees, as the Fair Work Commission estimates it takes over 100 days from lodgement to an agreement being finalised for applications.
- Allowing for parties involved to achieve a win-win situation or mutually satisfied with the outcome.
- Preserving a working relationship in ways that would not be possible in a win/lose decision-making process. Mediation can also make the termination of a relationship more amicable.
- Parties who negotiate their own settlements have more control over the outcome of their dispute.
- Allowing for lateral or creative solutions to disputes, which means parties can tailor their settlement to their situation.
- Privacy for parties involved as everything mentioned in the mediation is entirely confidential to the parties (unless specifically agreed otherwise), unlike the potential publicity of court proceedings.
Should you invest in mediation?
Dr. Daniel Dana, Founder of the Mediation Training Institute International believes that unmanaged conflict is the largest reducible cost in organisations today, and the least recognised.
Mediation is a service offered by CCIQ and should be utilised as the main form of dispute resolution for businesses. In 2018 alone CCIQ dealt with 63 mediation enquiries, helping a number of Queensland employers with dispute resolution. It is a process that gives those involved control, an independent, unbiased third party managing the mediation process and a real focus on achieving an outcome that benefits all parties involved.
Mediation is drastically more cost-effective than involving a lawyer or having a disgruntled employee file a Fair Work claim. CCIQ recommends involving a qualified mediator next time you experience a dispute in the workplace to see the real benefits of mediation first-hand.