Mediation Issues

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HR professionals commonly find themselves in themselves acting in either an official or unofficial capacity as mediator in employee disputes. Driving successful mediation requires a nuanced understanding of employment legalities, business negotiations, and human relationships.

Mediation should be differentiated from negotiation and arbitration. A mediator is appointed with the expectation of utter neutrality with respect to "taking sides", i.e., representing the interests of only one of the two parties, while nonetheless helping to clarify issues and making recommendations to both. Negotiation is normally performed primarily on behalf of or by one or both of the two parties, e.g., a police negotiator with clear obligations to protect the public and law enforcement personnel. It is important to note that mediators, unlike arbitrators, have no authority to rule on an issue, e.g., declare and enforce what is to be done regarding a dispute.

A mediation process refers to the formal set of techniques involved in the resolution of conflict. In the case of HR engagements, the parties involved are usually employees of the company with some kind of dispute. The Human Resources professional acts as a neutral third-party mediator to the discussions. Successful mediation resolves the issue with mutual agreement by both parties.

In skillful mediation, the mediator's ultimate goal is to avoid or minimize "zero-sum" outcomes, in which a "win" for one side means a "loss" for the other. Achieving this may require a radical re-framing of the issue(s) within a fresh perspective, perhaps utilizing previously disregarded resources, opportunities or alternative management/employee priorities, as well as the addition of incentives and/or the elimination of disincentives.

Any hint of bias or vested interest on the part of the mediator must be avoided at all costs. Even if the mediator does not favor one side in the negotiations, there are scenarios in which the mediator may appear to have a stake at odds with the interests of one or both sides of the negotiation, e.g., if the negotiations are running long and late on a night when the mediator has tickets for an NBA game.

Mediators should not (be expected to) make any rulings or enforceable decisions regarding disputes. That's the job of an arbitrator. Likewise, mediators must not "negotiate", since that means acting on behalf of only one party to the dispute.

In any employment dispute, both sides need to be clear about which of these services-mediator, negotiator or arbitrator-is most appropriate, allowing for the possibility that all three may be required at different stages of an ongoing dispute.

Of course, one goal common to all three forms of dispute intervention and management is the overriding commitment to ending the dispute. Otherwise, the goals will vary with the intervention. For example, while a mediator's primary goal is ending the dispute, a negotiator's main objective is in maximizing the benefits for the party represented. An arbitrator, on the other hand, will aim at determining and enforcing an equitable, impartial resolution of the conflict.

Although a mediator will ideally strive for an equitable solution, it is conceivable that a resolution of the dispute that is, however, clearly unfair to one of the parties may be accepted by both. In that instance, the key goal of ending the dispute through mediation will have been achieved, but at the cost of the secondary goal of equity.
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