Why HR Departments and Employment Lawyers Should Use Independent Mediators (and shouldn’t do it themselves…)

In recent times we have seen a considerable increase in the numbers of HR and Employment Law professionals training as mediators – I can see that it makes complete sense. The folks get involved in disputes at work and it seems only natural that they should extend their skills to resolve these difficulties for their clients and the skills developed in mediation training are very useful in lots of others aspects.

There’s nothing wrong with HR and Law professionals being at the forefront of conflict resolution. Many are, and all can be, great mediators and they are obviously experts in their fields. It the setting of their work and the processes which they engage in at the early stages of their contact with clients which, in my opinion, cause problems for the mediation process.

The main obstacle to a solution in mediation isn’t the problem, nor is it how long it has existed or who is involved. The main obstacle to a solution in mediation is the position that parties hold before arriving for mediation. My concern is that the investigative and representational approach of HR and Law professionals respectively, tend to serve to harden these positions and the institutional weight of these powerful people further cement positions.

Conflict arises at work (and other places) because people experience strong feelings arising from an unmet need. We all know the kind of thing. They want recognition, respect and someone else does something which they interpret as undermining that need. Often to explain these strong feelings the aggrieved party starts to form strong feelings about the other, they are rude or obnoxious. They may start looking out for other behaviour to confirm these opinions, maybe recruiting colleagues to re-enforce these views. In such a way a position is formed.

If such a person first encounters a mediator, they will not be asked too much about has gone on, it will be sufficient to know that there is a problem and that someone wants to resolve it. If the other party can be encouraged to get on-board, then we’re ready to go. Mediation approaches vary but what is held in common is the needs that the individuals have and a discussion about the future – any explaining can happen in the mediation session when understanding is developed between the parties.

HR and Law professionals have to do a number of tasks and key amongst these is to conduct an assessment of the situation and to offer advice. In these early discussions the party will be under considerable pressure to justify why they are there. The style of this interview is one of receiving a complaint. There will be reasons, lengthy explanations of the other party’s behaviour, evidence from other people about how their own behaviour is reasonable. This is all very difficult stuff for mediation. The professional may feel under pressure to “problem solve”, to make a judgement as to whether the individual is “right” or not. They may have to decide if a rule has been broken and whether a particular procedural route should next be followed. During this process the unhappy party is likely to do usual thing of distancing themselves from blame and pass that on to the other party – quite understandable and totally “human” but very unhelpful.

How to solve this. (1) My sense is that on being approached by a party with a grievance, unless there is immediate evidence of the need for urgent action, the professional needs to have mediation as the default position – unless there is a clear and pressing need to instigate action, mediation has to be the first call before an in depth exploration of the problem and (2) HR people and lawyers would be well served by developing their in house mediation service which is separate from their legislative or procedural role, or use an external, independent mediator.