Workplace Mediators Can Learn From the Practice of Family Dispute Resolution

By Elizabeth Rosa

Founder and Principal, Resolve at Work

The reflections in this article arise from my interview of Katelyn Betti, FDRP, Psychologist and Director of Family Compass, for the National Mediation Conference broadcast from Alice Springs in September 2021. In that interview, I explored with Katelyn some key features of family dispute resolution and how those could inform how workplace mediators conduct the process of intake and joint session.

A definition of these two areas of mediation

Workplace mediation:

This deals with interpersonal conflict in the workplace.

What are we trying to do with workplace mediation?

Help the parties to move forward from the conflict and to agree to a way of working together.

Family mediation:

This is about using family dispute resolution to agree on care arrangements, as well as property settlements.

Both types of mediation involve dealing with interpersonal conflict and are not purely transactional. They also both involve building a functional business-like relationship.

What are the challenges of both these areas of mediation?

Workplace mediation:

To assess for suitability: capacity, motivation and safety – psychological safety.

To assess for capacity (screen for mental health issues or challenging behaviour).

To assess for motivation (screen for reluctance and lack of good faith).

To have a productive and safe discussion.

High emotion.

Family mediation:

The challenges are the same but there is also the issue of safety from violence.

Katelyn reflected that in some ways, workplace mediation may be more stressful than family mediation. This is because parties involved in a workplace mediation, still have to work together in the same office or building. They face the question – could they afford to live if they left the job? They are in ‘pre crisis’ mode.

But in a family mediation, unless the parties are still living under the same roof, mediation is likely to take place post the separation crisis. But of course, the parties are still in a challenging, uncertain and stressful period.

Family mediators’ skills

1. How to assess for capacity or motivation

Wellness screening

This is a compulsory part of the FDRP process and is to check for psychological heath. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 provide at Part 7 regulation 25 that an assessment is to be made of: (2) (e) ‘the emotional, psychological and physical health of the parties’.

Assessments are also to be made for family violence and for equality of bargaining power or imbalance of power.

For the purpose of the interview, we looked only at the assessment for psychological health.

This is used for all intake sessions but assists greatly for assessing capacity to conduct the mediation. It also checks if a participant is significantly vulnerable.

Family mediators all have their own questions or methods of screening.

Katelyn’s questions are:

1. What strategies do they have for managing their self-care? E.g. what hobbies or interests they have.

If the participant finds it easy to answer, then this is a sign that they may have good self-care strategies in place. But if they say they are always tired from work and don’t do anything, that may be a sign that they have limited strategies for managing high stress experiences.

2. Who are the people that are supporting you at the moment?

It could be family, friends, professionals such as a psychologist or a combination of support people.

3. Assessing for use of alcohol and drugs.

FDRPs have an obligation to ask about this.

Katelyn asks if they use any, and if so, what is the amount and frequency. It can also be helpful to check whether the amount or frequency has changed in the past year?

A method of questioning to normalise such enquiry is: ‘Some people going through stress like this drink more. Has this been the case for you?’

4. Assessing for any historical or recent thoughts or acts of a) self-harm? and / or b) suicidality?

The screening can help assess if they are in a stable mental state to be able to engage with mediation. It can also help to assess if they are sufficiently motivated, as some people will share that they have engaged support in readiness for participating in mediation.

My reflections on this are that this screening could be used for workplace mediation, or at least questions 1 and 2.

2. Other skills to assist with screening for motivation

Assess level of motivation based on whether the mediation is compulsory

Family mediation:

Family dispute resolution is generally compulsory regarding children’s matters (e.g. care arrangements). Separating parties are encouraged to engage in family mediation in relation to property matters. Pre-action procedures are generally compulsory in relation to property matters and family dispute resolution is one of the encouraged pre-action options. If a party doesn’t want to engage in family dispute resolution they can refuse but may have to explain the decision to a Magistrate. In many cases a reluctant party would still come to family dispute resolution.

Workplace mediation:

This is not compulsory. The participants need to consider what the alternative is if they don’t agree to mediation or if they do mediate but don’t resolve any agreement. For example, what decisions would management make to deal with the conflict?

Katelyn felt that the participants need to see how it would benefit them, for example, to be able to feel less stressed coming to work in the morning. She indicates to her workplace mediation clients that they are agreeing to have a conversation and to hear what the other party has to say. They are not necessarily committing to having an agreement.

Have a central focus that is external to the individual needs of the parties

Family mediation

Katelyn explained that the focus is on the needs of the child. Family dispute resolution is facilitated as a child-focused mediation. So, the skill is: to focus the discussions on the child, rather than the parents’ individual needs. This can help with motivating a party to attend mediation, as well as making for a productive discussion in mediation.

Workplace mediation

Katelyn suggests to consider what we are motivating clients towards: we could have the focus on a concept both parties would want. There is a term in psychology for this – ‘externalising’: to shift the focus from themselves.

In family mediation, the external focus is ‘child focused’ but in the workplace, what could it be? Perhaps, instead of saying, would you like to have a conversation with the other party, you could say, would you like to have a conversation about a broader theme. For example, improvement to your experience in the workplace / healthy workplace dynamics / workplace harmony.

Communication style screening

Family dispute resolution training involves developing competence in a thorough assessment process including, asking questions to ascertain information about the parties’ communication style in terms of dynamics and patterns behaviour when there is disagreement. Such questions form part of the suitability screening. It involves asking about what the communication was like before, to see what the communication style was, as well as asking what it was like now after separation has occurred.

The questions can be: ‘What is it like now?’ and ‘What was it like before when you were in the relationship?’

This type of questioning could help for workplace mediation. For example, the questioning could be, ‘Before the incident, what was the interaction like?’ or ‘Was there ever a time when you got on well? If so, what did this look like?’

In addition, ‘What is working well and what isn’t?’

This could help with screening for safety in the mediation. It could also assist the parties to feel more motivated to consider what could work well, if they can recall a time when they did interact well.

Conclusion

The question I was exploring with this interview was what skills FDRPs use and whether these are additional to the skills of workplace mediators? In talking to Katelyn, I have found that a lot of the skills are the same but that FDRPs have more requirements for assessment of suitability. These are the requirements for assessing for the psychological wellness as well as for suicide risk, family violence and power imbalance.

There are two main things that I take away from hearing about FDRPs’ skills:

Firstly, I think that workplace mediators could find it useful to have a more fulsome psychological wellness assessment. This could help ensure that the parties are mentally well enough to participate in mediation and that they have capacity to deal with the intense process. It could also be a tool to assess the party’s level of motivation.

Secondly, the idea of using an external focus for the workplace mediation could be helpful. This would be some kind of word or concept. With family mediation, it is the interests of the child. In workplace mediation, it could be workplace harmony or healthy workplace dynamics. If the parties see that they are attending to have a conversation for this broad purpose, they may be more motivated at intake to agree to participate in mediation. And they may take part more constructively in the joint session.

Elizabeth Rosa is a Nationally Accredited Mediator, a Trainer and the Principal of Resolve-at-Work.