By Maria Fox, Partner at Murray Plumb & Murray

Many workplaces are made up of individuals with unique backgrounds, belief systems, and ways of working. In most cases, this diversity can enrich the work environment, especially with strong leadership and a culture of collaboration and mutual respect. But, even in the most positive work environments, inevitably, disagreements may also arise.

When these conflicts grow to the point of interfering with productivity or workplace morale, or when a complaint or grievance has been lodged, it might be time to consider mediation as a method of resolving disagreements.

Generally, there are three situations in which mediation might be utilized to solve a workplace dispute:

1. Employers might hire a mediator for disputes between coworkers or groups of employees who are not getting along. One example might be if an employee has reported another employee for bullying or discrimination and management investigated and did not find that it rose to that level but did find that conflict between the employees was disruptive to the workplace and impacting morale.
2. If an employee files complaints outside the business or organization, either with a government agency or in court, mediators can help resolve those complaints and lawsuits. These types of cases include all manner of employment claims such as sexual harassment, noncompetition disputes, race discrimination, disability accommodation, whistleblower retaliation, or termination of an employee.
3. Mediation is also used when there are conflicts between unions and employers, such as if a grievance is filed or if the union and management need help settling on terms of a collective bargaining agreement.

How should employees prepare for mediation?

In matters involving general internal workplace conflict, employees should think about what is important for them to say. Think about how to firmly but diplomatically express what is and is not working and consider ideas for resolution. Sometimes, writing out what happened in a chronology of events can help, as can thinking of specific examples that support their feelings or opinions.

In matters involving administrative or court claims or a grievance against the employer where the employee is seeking financial compensation, sometimes it can help to write an impact statement that explains how the dispute has affected them and their life financially as well as on an emotional level. Have they lost income or other benefits? Have they incurred debt? Have they had to go to the doctor or to therapy? How has the situation affected their mood? Their relationships? Their confidence in their profession? Their reputation?

It is also important to understand what employees can and cannot get from a court or arbitration vs. a mediation process. They should consider what their attorney or union representatives advise them about the likelihood of success of their claims and the range of compensation they could realistically get awarded if they take or continue with legal action. What is the risk that they might lose the case outright and get nothing? What is the risk that they might win, but not be awarded very much money? What are the costs of pursuing legal action? How long will it take? How will ongoing litigation affect their life? Mediation presents an opportunity to get closure more quickly and, in some cases, achieve things that could be valuable now and that may not be something the court has the power to order, such as a letter of reference, an agreement not to make disparaging comments, improvements to the employer’s policies, and training for its supervisors.

How should employers prepare for mediation?

In matters involving administrative or court claims or grievance against the employer where the employee is seeking financial compensation, employers should make sure they and their employment law counsel (and insurance adjuster if there is insurance coverage) have a good handle on the relevant documents and what key witnesses will say.

They should also understand the outside risks. It’s important to consider not only the full legal exposure on the claims but also other factors, such as: How is an ongoing dispute impacting the business? How much will it cost to defend against the claims (even if the employer ultimately wins)? If there is publicity, how might that impact the business? How much time and effort will be involved in defending or continuing to defend the claim? Will it cause disruption to the operation of the business to have to respond to requests for documents and information, and to have other employees be pulled into the matter to provide testimony in depositions, arbitration or trial?

As with employees, mediation presents an opportunity for employers to get some things they cannot get from a court, such as confidentiality of the fact and terms of settlement, as well as a nondisparagement agreement to prevent future negative commentary about the business or other employees.

For both employees and employers, it’s important to think about what the other party may be thinking and feeling, and what options are available to reach a compromise that ends the dispute. Sometimes finding something positive to say about the other party or acknowledging grief or high emotions can lead to reciprocation and more open discussion. Sometimes making some concessions can build the trust and credibility necessary for the other party to let go of the conflict. In many cases, it can be helpful to take time to consider the impact of ongoing conflict on people’s lives and businesses and how that could change if the conflict were over. Settling workplace conflict through mediation can reduce stress and bring needed closure.

A qualified mediator can help determine the most effective way to move forward productively when facing workplace conflict. Murray Plumb & Murray’s mediators are available to assist with workplace and other alternative dispute resolution needs