What is the Alternative to Workplace Mediation?

What are the alternatives when a participant is resistant to mediation?

by Elizabeth Rosa, Founder and Principal at Resolve at Work

Working as a mediator of workplace conflict, I sometimes come across parties who are resistant to taking part in a mediation. At the intake meeting, I explain the procedure and check that the parties understand the process that will take place. They will often be amenable to continuing with the meeting and are keen to explain the issues at hand from their perspective. But they usually get stuck on answering questions about what they would like from the other party, or about what ideas they may have for how to work better with the other party. The reason they get stuck on the future-focused questions is because they do not really want to do the mediation.

If a party does not want to do a mediation, it is important to find out what they see as the alternative.

In, say, a mediation in a litigated matter about legal issues, if a party does not want to participate, their option is to have the matter heard in court. They take the risk that they may lose the case. Or even if they win, they may get a verdict for less than the other party might have offered, had there been a mediation. They usually have a strong belief that they will win, which may be unrealistic.

In a workplace mediation, if a party does not wish to be a part of the mediation, this may be because they think there are alternatives - what they imagine could happen - but often these ideas have not been thought through:

• the other party being dismissed

• not having to work with, or for, the other party any more

• the other party changes to another role

• the other party locates to another part of the office

It may be worthwhile to ask the person what they think will happen next if they do not take part in the mediation. The party may mention some of the ideas above. The mediator may reality-test with them, whether those ideas are realistic, or whether they have been given the impression by HR that one of these options might be possible. Obviously, the mediator is not an advisor on options but has a role in ensuring the party understands what they are choosing when they reject the option of a mediation.

If HR has not indicated any alternatives, it might be because they wish to explore mediation first before considering what the options are. In this case, by rejecting mediation, the party will be choosing uncertainty as they usually do not know what will happen next.

A party may feel that they do not need to do the mediation because

• they don’t have a problem with the other party

• they have been ‘vindicated’ in an investigation into their conduct and so there are no more issues.

• they don’t want to meet with the other party

In this situation, the mediator will again need to investigate with the party what they think the future would look like if they do not mediate. Do they think that the other party’s concerns will go away? By rejecting mediation, the parties need to become aware that they are choosing a less certain path forward.

In trying to establish if a party does wish to participate in a mediation, perhaps it boils down to a simple question: if a mediation is about improving the workplace relationship, then the question may be ‘Do you want to improve the workplace relationship with the other person?’

It is important for the mediator to check willingness to do a mediation because participation is voluntary. If a party is reluctant to take part they will not participate well in the mediation. This will be detrimental to the process and potentially harmful to the other party. Parties need to take part in a mediation in good faith.

Above all, give a party space to reflect so that if they do ultimately agree to participate in the mediation, then they are truly on board for the process.

Elizabeth Rosa is a Nationally Accredited Mediator, a Workshop Facilitator and the Founder of Resolve-at-Work.