Getting the Most out of Mediation: Understanding the Process

As a full time neutral, I often get asked by other attorneys about how they can best take advantage of the mediation process.  Given that a Department of Justice survey found that an overwhelming 97% of civil cases settle before going to trial, and many of those cases settle with the aid of a mediator, knowing how to make the best use of mediation is an important tool for all litigators to develop.

One of the most important things that ensure a successful mediation is understanding the process.  I'll illustrate this with a cautionary tale.  I recently conducted a mediation of an employment discrimination complaint.  Things initially flowed according to the traditional process.  After a brief opening session introducing everyone and giving an overview of the process, I met with both parties in separate caucus to flesh out their positions and better understand what we could be working towards in terms of resolution.  Upon returning to the first party, the attorney for that side began by saying, "Look, I don't even understand the point of mediation.  I just don't think this is going to work.  Here's my client's number, and there is nothing you can say to make him change his mind."

Telling your mediator that you do not understand the point of mediation, and that you believe it never works, is a surefire way to derail your mediation.  And, of course, that is what happened.

The mistake this attorney made was coming in to a mediation unprepared; specifically, he came in without any understanding of the mediation process.  Mediation is by design a flexible process that allows the parties to explore what they need and what they can offer in order to move towards resolution.  One reason for the appeal of this flexible, informal process is that it allows for conflicts to be addressed and resolved more efficiently and quickly than through a traditional administration or judicial proceeding.

An integral part of this process, then, is in the exchange from information between the parties.  The mediator is not a judge; as a neutral, I am not there to decide who has the better end of the case.  Instead, the mediator is a conduit between the parties.  As with the mediation I just described, if one party does not understand this, and decides that it neither wants to share nor receive any information or even discuss compromise, this is a party that is unprepared to take advantage of the mediation process.  And this is an attorney who just wasted everyone's time, and his client's money.

Before heading in to a mediation, do your homework to learn what you can about your particular mediator and her process.  There are many styles of mediation - facilitative, evaluative, and transformative are three common types - and each mediator has different process preferences.  Some keep the parties apart the entire time, engaging in shuttle diplomacy back and forth, while other mediators keep everyone in the same room in order to facilitate a dialogue, and most mediations involve a little of both options.  Knowing what style of mediation and what process your mediator will use will better allow you to prepare your presentation as well as preparing your client to know what to expect.  And as you develop your advocacy skills in mediation, you will better know what style of mediation works for your litigation style and your particular case, empowering you to have the information you need to work more effectively with your mediator to bring your conflict to resolution.

Using Mediation to Repair, Strengthen and Sustain Workplace Relationships

Human beings have evolved to be social creatures.  As such, our relationships are fundamentally important to all aspects of our lives.  Who we relate to and how we relate to them define and support us at every turn.  Therefore, given that we human beings spend so much of our time in workplace settings, the relationships we form at work are of especially critical importance, both to us as individuals and to our employers.  

Wharton business professor Adam Grant recently wrote a thought provoking op-ed exploring the importance of our workplace relationships.  In his piece entitled “Friend’s at Work?  Not So Much”, Grant explores the role of friendships at work, and comes to the conclusion that we may be shortchanging both our happiness and productivity by neglecting to focus on and foster workplace relationships.  Grant writes:

“BUT we may be underestimating the impact of workplace friendships on our happiness — and our effectiveness. Jobs are more satisfying when they provide opportunities to form friendships. Research shows that groups of friends outperform groups of acquaintances in both decision making and effort tasks.”

Even though it may not be as obvious to us as our familial or social relationships, our relationships at work play a huge role in our lives.  These relationships have the potential to dramatically affect our performance and satisfaction on the job.  Therefore, tools that support the health of these workplace relationships should be regularly prioritized and utilized, and mediation is a perfect example.

As a method of resolving conflicts between individuals and groups, mediation is the perfect tool for addressing problems in relationships.  In the workplace, mediation can be used to help coworkers better understand each other, as well as better understand and define how their relationship can help them perform their job duties more successfully.  Mediation creates a space for productive conversation, bringing people together to address concerns and come up with solutions to any problems.  Mediation can also be used to help address longstanding issues or concerns in a workplace to help strengthen relationships going forward.

In my own work with potentially inflammatory discrimination and EEO claims, I have seen how mediation can repair rifts in relationships by bringing people together to openly deal with their concerns.  By giving parties in conflict ownership over their issues, mediation honors relationships by allowing parties to take responsibility for the problems at hand and empowering them to come with solutions that best suit their circumstances.  And those mediated solutions can actually bring people together and improve relationships moving forward, improving the workplace for everyone.

If Grant’s research shows us anything, it is that relationships are an important part of every workplace.  As such, mediation should be a key tool workplaces rely upon to keep their relationships strong and their workplaces flourishing.

The Benefits of Being Proactive about Conflict Resolution in the Workplace

Workplaces are environments where conflicts are unavoidable.  When working together, people will inevitably come into conflict over things all aspects of workplace life.  Work goals, duties, performance, expectations, assignments, work styles and communication styles are all potential sources of conflict.

And these conflicts have consequences.  From lowering employee morale to negatively impacting employee engagement, from creating high turnover and decreasing productivity and organizational effectiveness to the big granddaddy of all workplace conflicts: the drawn out and expensive lawsuit.

But conflicts do not have to result in these significant problems.  If properly handled, workplaces can deal with conflicts in ways that not only prevent disruptions to workplace functionality, they can actually result in a better workplace.  And the best way to manage conflict is to be proactive about conflict resolution.

A recent survey of Fortune 1000 companies by a trio of business school professors from Cornell, the University of Illinois and Penn State documented this very thing.  According to their survey results, organizations that proactively engaged in alternative dispute resolution (mediation, arbitration, facilitation, and other forms of out of court conflict resolution) to address and resolve workplace conflicts showed great satisfaction with the processes and results in resolving those conflicts.  

Specifically, organizations that utilized alternative dispute resolution methods were more able create sustainable solutions, avoid litigation entirely and create better systems to deal with conflicts in the future.  And the more proactive these organizations were with implementing methods to address conflict head on, the much higher their success and satisfaction rates.

What could being proactive about conflict in the workplace look like?  Primarily, being proactive is the opposite of being reactive; it means addressing conflict early on and not waiting until being forced to address problems because of a lawsuit.  It this way, a proactive approach could involve utilizing mediation or facilitation to address workplace disputes as soon as they become apparent.  It could also mean designing systems to better allow for the recognition, reporting and subsequent resolution of all problems in the workplace.  

There are several ways for organizations to become more proactive about dealing with conflict in the workplace.  Consult with a trained workplace mediator to see what your options could be, and set your organization on the path to greater efficiency, productivity and functionality.