D Assistance to Resolve Problems at an Early Stage

So far this paper has focused on the personal grievance system that applies once an employee has raised a grievance. We are also interested in your views as to what more we might do through the Department's mediation services to prevent employment relationship problems arising or escalating to a point where they require more formal intervention.

As a 'conversation starter', this final part outlines two broad ways to enhance mediation services. The first is through improving the delivery of our present services and the second is through extending the scope of mediation services provided.

Current Situation: Mediation Services

Description of Employment Relationship Problem Resolution System

The range of mediation services

The Employment Relations Act 2000 provides wide scope for the provision of mediation services, and makes it clear that mediation services are designed to assist the smooth conduct of employment relationships and is therefore not limited to formal mediation between the parties (mediation "events"). The possible range of services covers:

1. preventive mediation provides employers and employees with the knowledge and tools to manage and resolve workplace problems themselves or prevent problems from arising
2. early intervention seeks to resolve problems when they first arise to reduce the probability of further escalation. It includes offering mediation services to prevent strikes or lockouts, or offering assistance to workplaces at times when problems can arise
3. mediation events seek to assist parties to resolve a problem that they have been unable to resolve on their own. It includes helping parties to resolve employment problems at a formal mediation meeting. In most instances the employment relationship has already ended.

Mediation services currently face a number of challenges and opportunities. One challenge is that there are limited resources for preventative and educative work, with most effort committed to resolving actual disputes. There is the potential for proactive approaches to be offered as a strategic and nationally planned approach rather than on an ad hoc basis.

Mediation relies on the physical presence of the mediator, employers, employees and their representatives in a single venue. Drawing all the parties and their representatives together in one place can be challenging particularly when the workforce is increasingly fluid, many businesses are global and disputes often arise outside the main centres where mediation is delivered. An increase in the use of technology such as telephone, video conferencing or computer-based problem-solving could provide an opportunity to deliver a wider range of services, increase access for global participation by multi-national parties and parties outside of the main centres.

There are two broad ways to enhance mediation services. The first is through a focus on the delivery of the Department's present services and the second through extending the scope of mediation services provided. Research shows that early problem resolution reduces costs, in terms of money, time and stress and increases the chance that the employment relationship is preserved. Many employers and employees say that they prefer to resolve issues themselves without a third party, but they may not always know how to do so.

Some ideas are outlined below. We would welcome your feedback on these, and any other thoughts or ideas you might have around early intervention.

Options to Improve the Capacity and Capability of Mediation Services

Strengthen existing mediation service provision

There is a wide range of ways by which the quality and timeliness of services could be improved. These include:

Offering flexible mediation arrangements, including venue and style of contact

The aim of the current legislation is to ensure services are provided in ways that are most likely to resolve the problem. These include considerations of time, place and style. Mediations are currently conducted in Departmental offices or venues around the country, providing a professional, confidential and neutral atmosphere for dispute resolution. However, this environment may not be the most conducive to resolution for the parties: accessing mediation rooms can be costly, time-consuming, and present unfamiliar and, therefore, stressful, surroundings for employers and employees. Tailoring the mediation event to the needs of the parties could support the smooth conduct of employment relations. For example, mediators could deliver events in places familiar to the parties rather than at a prescribed Departmental venue.

Flexibility can also apply to the style of mediation. A range of approaches can be used by mediators to assist parties solve employment problems, including guidance through facilitation, assisted negotiation, and decision-making (through powers provided in legislation). Different circumstances require different approaches and the mediator currently chooses the most appropriate style at the time of the event, based on their judgement. Early diagnosis of the problem supports improved tailoring of mediation style to the parties' needs. Options for the future could include widening the scope for parties and the mediator to agree in advance the nature of the mediation approach to be used.

Develop resolution mechanisms geared to the needs of short-term migrant workers

Economic growth requires an increasingly diverse and mobile workforce, including short-term migrants and non-standard workers, such as dependent contractors. Ensuring these are viable, productive and attractive employment arrangements requires adequate support for relationships that are in conflict. Accessing mediation services in the form of information, guidance and conflict resolution can smooth otherwise disruptive arrangements.

Meeting the needs of a modern labour market raises issues of logistics (mediating at a distance), cross-jurisdictional protocols (ability to work with mediation services or a practitioner operating within a different set of legislative and practice expectations), and culturally appropriate practices. Overseas research indicates that the experiences of migrant service users tend to be less satisfactory than mainstream users. Technology can support accessibility through video conferencing arrangements or online services and greater flexibility in mediation "style" can improve the experience of specific cultural and religious groups.

Exploring the use of mediation as an intervention option for health and safety issues

Mediation services could potentially be used to resolve health and safety problems in a workplace, in addition to existing workplace health and safety mechanisms and processes. Workplace health and safety issues arise within the context of employment and, in many instances, health and safety and employment relations problems are inter-related. For example, a stress-related issue may be intertwined with an employment dispute and addressed through a health and safety or an employment relations procedure. Currently some stress complaints are addressed in mediation in conjunction with other disputes. The opportunity to extend such intervention to resolve health and safety issues through a facilitated or mediated engagement between the parties may reduce the possibility of problems escalating to a critical or more litigious phase.

Where workplace health and safety matters are more easily, quickly, or more appropriately resolved using the mechanisms of the Health and Safety in Employment Act 1992 (HSE Act), these mechanisms would continue to be the primary means of addressing such matters. It is important to note, however, that if the HSE Act is breached, it would not be up to the employer and employee to resolve the matter, rather it would become an enforcement issue for the Department of Labour, i.e. whether or not to lay charges or to impose a penalty.

Extending the Scope of Mediation Services

There are opportunities to provide mediation services through education and early intervention to prevent or reduce disputes and improve productivity. Tailored dispute resolution processes for the benefit of whole workplaces could enhance the public value of government-provided mediation services. Improvement in the Department's "one-to-many" services (where one interaction can effect, or be accessed by, a wide audience, and at different times) and our workplace responsiveness is critical to fulfil the intentions of the legislation that mediation services support the smooth conduct of all employment relationships.

Preventive Mediation

Systemic interventions focused on developing dispute resolution systems

Personal grievances must be pursued by individuals under the Employment Relations Act even though many factors within the workplace may have contributed to the presenting problem, such as poor communication or unfamiliar procedures. Addressing systemic issues in the workplace can support smooth employment practices. Research in New Zealand and the United Kingdom shows that organisations that have clear and transparent policies and procedures are more likely to resolve disputes early and in-house. Parties are also likely to be more satisfied with the outcomes. This finding suggests a focus on systemic issues within the workplace could support reduced personal grievances by individuals.

Mediators become aware of patterns of problems and at times facilitate workplace teams to improve procedures. These approaches are developed in response to requests by businesses looking for a more proactive involvement by the mediation service. Several examples of successful systems exist world-wide that apply a coordinated network of options to resolve an identified problem in a business. Exploring a systematic approach to identifying complaints' patterns and trends, with feedback and options for resolution, could support reduced conflict and more productive workplaces.

Assistance targeted at Small and Medium-sized Employers

Although small and medium-sized employers (SMEs) have less frequent experience of employment relationship problems than larger businesses, they can be adversely affected by a personal grievance case. SMEs may be less familiar with the law, less certain of how to proceed, have fewer management and financial resources available and are the least satisfied with processes and outcomes when they reach mediation. These workplaces may benefit from the intervention of a mediator equipped to educate and coach employers in handling employment problems.

New Zealand research noted that one of the attributes of an effective employer was that they knew about the full range of resolution methods available and could choose among these according to circumstances; and, that employers provided employees with guidelines on what forms of behaviour were acceptable and managers with problem resolution procedures.

Early Intervention in Individual Disputes

Flexible and negotiated problem-solving

Mediators could respond to early notification of an employment relationship problem by working with the parties to assess what is going on and recommend a variety of responses including conflict coaching, facilitation of dialogue, partnering and mediation.

Earlier intervention in individual disputes

Early intervention in workplace problems assists parties to resolve their differences quickly and without recourse to external assistance. Early resolution helps parties to keep down direct and indirect costs. Research in the United Kingdom shows that the sooner the parties are able to access assistance, the more likely they are to resolve their differences and be satisfied with the help they receive. New Zealand research found that in smaller businesses conflict is likely to emerge earlier and initially be difficult to define.

An example of early intervention is where an employer seeks assistance with a problem between two employees. The mediator may undertake a diagnostic assessment to determine the most appropriate response and then facilitate a solution with the team at the workplace. This type of intervention avoids escalating issues to more formal processes, such as mediation. It also empowers employers and employees in the skills of conflict resolution and helps the workplace to build on the lessons learnt.

Online dispute resolution and expert advice and decision-making

Currently mediation services are largely delivered through face-to-face meetings between parties. The Department of Labour could explore greater use of technology to deal with some disputes, or parts of the mediation process. The legislation promotes the use of email and internet for delivering mediation services and these mechanisms could be extended for use in setting up arrangements, negotiating the preferred problem-solving model, sharing relevant documents and exchanging ideas on possible options for resolution. It can also assist in delivering post-event mediations and for the provision of educative tools.

Online dispute resolution is being provided in many settings world-wide and mediation is the most widely used online dispute resolution process. Its benefits include:

• it does not require a single meeting so costs and delays of scheduling face-to-face encounters are reduced
• it lessens time taken out of the workplace for meetings
• it allows parties time to reflect
• it reduces the stress of tense encounters
• it provides a complete record of proceedings not compromised by misinterpretation and memory
• it offers the opportunity for summaries and draft agreements
• it facilitates transmission, storage and retrieval of information, and
• it allows parties to make online submissions and retrieve documents from a virtual secure registry.

A number of these options are untested within the scope of mediation services at present. Possible benefits include better access, reduced productivity loss for workplaces and increased productivity of mediators.

Other options

Other options for assisting with the early resolution of employment problems include:

1. offering a range of advisory services, such as those provided by the Advisory, Conciliation and Arbitration Service (ACAS) in the United Kingdom, including training courses tailored to particular businesses; mediation and conciliation services for individual and collective disputes; and advice on employment issues including specific issues, such as the recession
2. the development and implementation of an online interactive tool to help employers and employees resolve problems without third-party intervention. This would tap into the existing high demand for online tools for problem-solving
3. coaching in-house mediators or supporting the development of in-house skills in conflict analysis and resolution, and
4. awareness-raising of best practice processes and conflict management, for instance, through industry and community organisations