Conflict, management and mediation
by
David B. Harwi and George Reath, Jr.

(Previously published by the Philadelphia Chamber of Commerce, January 2003)

For business, conflict is a costly management problem. Mediation is increasingly seen as an effective tool in conflict resolution.

Mediation is a form of negotiation facilitated by a neutral who has no authority to impose a solution. The neutral is not a factfinder or faultfinder. Mediation is not a forum for winning or losing but rather a process for problem solving and moving forward.

Mediation is a confidential process in which the parties control the resolution. Only they decide when they have reached agreement. When using the services of an experienced, trained mediator, the process is effective, timely and far less costly than litigation or arbitration.

Mediation is particularly effective in the context of disputes between employers and employees and in disputes involving current or past relationships. It is not soft and fuzzy as some may think. In the hands of a trained neutral the disputants will focus intensely on their interests and needs as they confront their dispute.

A classic example of mediation, as distinguished from litigation and arbitration may be helpful.

Two siblings are fighting over ownership of an orange. Each claims the orange.

Litigation and Arbitration - Their parent, a fact finder, upon hearing the siblings' demands and bases for ownership, cuts the orange in half and gives a half to each. Both siblings leave dissatisfied.

Mediation - The siblings select a mediator to facilitate their negotiations. With the mediator's coaxing the siblings learn that one needs the pulp to make orange juice and the other needs the skin for a recipe. Each is satisfied.

Mediation has enormous potential in the employment context as seen in these examples.

1. The United States Postal Service has implemented an early intervention mediation program for employment discrimination claims in which the employee voluntarily submits the claim to mediation. The mediation is seen as an opportunity for open, honest and respectful exchange in hopes of bringing about closure. The employee does not forfeit any rights by going to mediation.

The mediation occurs during the employee's regular shift and the employee is paid while attending the mediation. The mediator is an independent contractor retained by the Postal Service to work in these disputes. There is no obligation to reach a settlement.

The statistics are compelling considering that the USPS has thousands of EEO claims each year. Eighty-six percent of the claims which are submitted to this USPS program are resolved before the employee files a formal complaint, or just disappear. More than 90% of the employees and managers who have been involved in the REDRESS process view the process favorably. The cost of one of these mediations, USPS estimates, is $1,500-$2,000 versus $20,000-$35,000 if the matter goes through an administrative process or litigation.

Without the pressure to reach settlement the stakes of the mediation are lowered but closure occurs with tremendous frequency. The process permits manager and employee the dignity of resolving differences themselves. The result is not only closure but also an improved workplace environment at a minimal cost.

2. Your manager of hardware cannot get along with your manager of software. Both employees are valuable. The managers agree to try to mediate their dispute. You then contact a professional mediator to work with the two employees.

The mediator contacts each employee and begins the process of building trust. He provides them with information about the mediation. The mediator explains that the process is confidential. He also commits to file no report with the company even though the company is paying his fee.

The mediator explains that he is a neutral who is there to help the employees develop their solution to their problem. He will help the employees talk to and listen to each other. He explains that the mediation may involve several sessions, which will provide the employees an opportunity to reflect upon the proceedings.

The process starts with each employee discussing issues and concerns with the mediator. This allows the employee to articulate and organize her perceptions of the conflict prior to the first get together.

The employees then meet with the mediator. After an initial security dance, the employees find themselves beginning to express thoughts and feelings in the mediation that they had not previously considered discussing with each other. The forum provided by the mediator allows them to do this. Several more sessions are held and the employees begin to develop a new modus operandi. They can talk to each other more comfortably and address issues constructively. Although no formal agreement has been reached, the mediation is a success.

Mediation works.

ŠTriage Mediation Services Inc. 2002