Mediation For Businesses
Conflict of some kind arises almost daily within most organisations and businesses and can be healthy and productive, but it can equally be counter-productive, even destructive. Conflict can arise between top executives and their immediate reports, between team leaders and team members, or on the shop floor. A simple throwaway comment, a missed deadline, or lack of communication between employees about areas of responsibility, failed promotions, or even fear of dismissal, are all circumstances that can lead to conflict in the workplace The situation is exacerbated by the proximity of work colleagues and the inability to remove themselves from the source of the conflict. It is therefore confronted on a daily basis. Workplace mediation can take place in any business or work environment, and if used effectively, and early on in the dispute, it can prevent employees/employers becoming entrenched in their own positions, and allowing the conflict to affect the wider workplace in terms of performance and wellbeing.
Mediation is a flexible and common sense approach to conflict resolution that helps those involved in a dispute to arrive at their own workable solution. The mediator is an impartial and experienced third party who facilitates discussion and enables dialogue. Mediation focuses on how the parties in dispute move forward rather than on apportioning blame for what has happened in the past.
We know from experience that the “listen and fix” approach works and mediation offers the opportunity for parties in conflict to hear what the problem is. The mediator paves the way for the listening and responding process and so the path to the solution, so that the individuals and the business are able to move forward. It is common in conflict situations for one individual not to listen to what the other is saying. The mediator will adopt methods intended to enhance the communication between the parties, allow the parties to feel listened to and to feel comfortable in a neutral environment, and thus be able to talk freely about the issues affecting them. It is also very effective at giving parties an insight into their own behavior. The mediator can help both parties dig deep and think the unthinkable. The unthinkable is unlikely to be a realistic solution, but it will often prompt a more realistic way forward that can be put without prejudice to the other party. Unlocking the conflict and helping the parties understand that agreement is possible, is the key. The solution that is reached is the parties’ own solution, not that of the mediator.
However no one disputes the fact that the starting point at least is the legal rights of the parties, or their asserted rights.. Parties in a conflict should always continue to have a realistic and informed opinion of what their legal rights are. This is where we see our services being invaluable, with the mediation existing alongside the recourse to law if necessary, and with the legal team ensuring that at all times the legal rights of the parties are protected and running concurrently should recourse to the courts or Tribunal prove necessary. Mediation , like litigation, is not a one size fits all solution. At SW19Lawyers we believe that our collaboration with independent mediators, provides our clients with options. We consider whether the parties wish to have a continuing relationship, and if so it is counterproductive to have a win/lose mindset which will impact upon future dealings or working relationships. We also consider the proportionality of the claim, and whether resolving the matter through the courts is financially worthwhile.
The essential elements of mediation are:
The mediator is independent, and does not take sides or judge the parties. Both parties are on an equal footing, and the mediation takes place in a neutral venue.
Parties can talk about anything that is affecting them, whether this is emotional or personal, and therefore must be certain that nothing discussed in the mediation process will be disclosed outside of the mediation process. Parties will sign a confidentiality agreement before the mediation begins, which extends the principle of confidentiality to the mediator and the employer, should the parties agree for them to see the written mediation agreement.
The parties must all be willing to take part.
The benefits of mediation are:
Mediation is fast and cost effective: court actions are lengthy and expensive. Commercial and workplace mediation is usually completed in a day, sometimes two.
Mediation is successful: most mediations result in a settlement on the day or very shortly thereafter.
Mediation is confidential and without prejudice: nothing said in the mediation is admissible as evidence in court.
Mediation is low risk: an offer made during the mediation can be withdrawn before agreement is reached so there is nothing to lose in trying to reach a solution.
Mediation is informal and flexible: the mediation process is tailored to suit your needs. The Mediator is neutral and allows the participants to stand back and reassess their respective positions.
Mediation maintains business relationships: successful mediation results in an agreement acceptable to all parties, as opposed to a court judgment which is imposed on the parties. Arriving at a settlement through mediation is far more likely to preserve business relationships and allow the parties to move on effectively.
Mediation offers a variety of settlement options: the mediation agreement or compromise settlement, agreed by the parties, can involve financial payments from one party to the other but can also include other options that the parties agree through the Mediator. The range of settlement options is far wider than those available in litigation. Once settlement is reached, agreed and signed, it is legally binding.
In summary, mediation generates understanding, removes fear and focuses on the future, and works alongside the legal process, so that the parties do not lose their legal rights, and have access to excellent legal advice throughout.
In commercial disputes, we bring the opposing parties together on neutral territory. We facilitate a discussion that, more often than not, leads to a solution that is good enough for both parties to move on.
We work in all commercial areas:
- contractual disputes, particularly information technology and systems development;
- breakdowns in business relationships, including partnerships and mergers or takeovers;
- disputed insurance claims; and
- medical negligence and complaints with hospitals and doctors
The advantage of mediating in these areas is that the parties involved get the opportunity to talk, where perhaps they have been unable to for various reasons.
To quote Sun Tzu “ build your opponent a golden bridge to retreat across” An effective mediator can help in the design and construction of the bridge!