Contemporary Mediation Practice
Handling an Employment Relationship Grievance � advice for advocates
Mediation has been legislatively prescribed as the primary dispute resolution process and is well recognised and accepted by participants and players in the wider employment relations system. As a mediator who has taken a part in mediations now numbering well in to the four figures, I do not claim any particular insight above others into the efficacy of this provision as a whole, but I would be doing myself a disservice if I didn’t reflect that I had learned something along the way. The purpose of this paper is to offer advocates some comment, perhaps even advice, on what works well in mediation.
In doing so, my emphasis is on the practical rather than the theoretical. I come from a perspective where I have an advantage over lawyers and advocates in that I see the process unfolding – I see and talk to each party, both in a plenary and caucus environment.
Prior to mediation
The obvious place to start is to focus on what happens before the parties even arrive at mediation. Often, the temperament or climate is set well before the parties actually meet. Ian Gordon has commented on the need for an open mind, getting the facts (even the ones your client doesn’t want to reveal!) and the need to get a thorough understanding of your client’s needs and interests. Quality work at the front end pays dividends in the mediation process. We are all painfully aware of the advocate who meets his/her client for the first time just prior to the mediation meeting, then miscues and bombs the process, leaving a trail of tears. Smart advocates recognise that, in the end, mediation is essentially a process of sophisticated negotiation. To that end, preparation is essential.
Arriving on the day with a well thought out mediation strategy pays dividends. Such a strategy involves:
- having your client tell the story – they need to be heard, especially on the effects of any dispute on them, and their voice is often more authentic than the best advocate’s submissions
- understanding what the other party is likely to raise
- having a good appreciation on how the law informs the matter for both sides
- knowing what your client’s needs and interests are (apart from financial) – also having regard to differences between short-term needs and long-term interests
- having a common understanding with your client on the best alternatives to a negotiated agreement (BATNAs), worst alternatives to a negotiated agreement (WATNAs) and the most likely alternatives to a negotiated agreement (MLATNAs)
- having a sound appreciation of costs and benefits
- having an open mind, without losing the plot
- making sure the client understands what to expect from mediation and from the mediator.
On the day
Sophisticated advocates have a number of common features. First, and perhaps most importantly, they treat the other party with respect. The old adage of being tough on the problem and soft on the people is a smart tactic. I will say more about that later. Countless times I’ve heard lawyers and advocates seemingly showing off in front of their clients only to have their position mortally wounded when they actually hear the other side. Alternatively, even if they have “right” on their side, the mediator goes into caucus with the other party to be met with a comment along the lines of: “I’d rather pay my lawyer thousands than give them a dollar.” Treating the other party with disrespect is not a smart move, especially for the less experienced advocates.
Second, having your client tell the story can be a powerful move. Often a mediation would be incomplete, in a process sense, without such an opportunity. Most mediators will ask anyway, but in my opinion, clients should always be encouraged to speak.
Third, be realistic in what is being sought. Within reason, practitioners all know the tariff so it is pointless asking for remedies that are over the odds. Advocates who do so run the risk of disengaging the other party and making it rather difficult for the mediator to repair the process.
Fourth, the Romans had it right – audi alteram partem – listen to the other side. Many a mediation comes to grief simply because of a total factual disconnect between the parties. While agreement isn’t needed, the sophisticated advocate knows when to acknowledge a point or two made by the other party. If they’ve done their homework, they may be able to turn it into a positive. If valid points are not acknowledged, advocates run the risk that the other party will feel they are not being listened to and will see little point in continuing. Advocates should be patient, allow time for discussion and not rush to solutions.
At some stage of the process, direct or indirect bargaining takes place. My purpose is not to set out a complete “how to” guide but to offer some tips on what, in my opinion, works well. As I have said, asking for the stars is a sure way to annoy the other side, as is completely rejecting, out-of-hand, any reasonable commencement point. For the purposes of this discussion, I am referring to cases where there is some mutual risk.
Every negotiator wants to win, but in employment mediations, a distinction has to be drawn between the advocate’s desire for success and the client’s short-term and long-term needs and interests. Mediations are meetings, not trials. Personally, I don’t mind questions of clarification being asked of the other party but only on the explicit understanding that it’s not cross-examination and no-one has to answer if they (or their lawyer) would prefer otherwise. Sharing more of the background often helps connect the dots and can lay the groundwork for the following negotiation process. If a party is treating the other with respect, then this phase is likely to be a lot more profitable.
Astute advocates use the plenary sessions as both an opportunity to put their view and understand the other party’s perspective. There are often a range of mutual and separate interests, and it is only through this phase of the mediation that they become explicit. In traditional interest-based negotiation, interest is defined as a party’s concern or need behind an issue. It expresses why participants care. Interests can be mutual, and the astute advocate is aware of this and can explore them to the best mutual advantage. Perhaps this is more relevant in collective bargaining, but even in personal grievance mediations, there are inevitably mutual interests.
An example may be an under-performing employee, perhaps with health concerns, who is nearing retirement and is the subject of a disciplinary process. The interests of the employee may include:
- reputation – avoiding being dismissed
- protecting superannuation
- dignity and pride – ending a career with dignity
- getting certainty for the future.
For the other party, the interests may include:
- protecting other employees
- business profit/viability
- reputation – being seen as a good and fair employer
- getting closure.
This example shows there are a number of shared or mutual interests. Experienced practitioners in a mediation setting can quickly isolate and use the shared interests to practical advantage while keeping the overall goal or strategy in mind. I have seen many occasions where the problem cries out for a solution in mediation only to have the whole process thwarted by advocates who simply wreck the process through lack of planning or ability to spot the obvious. Sometimes, ego triumphs over process or the advocate/client have set up a folie à deux where credulous client meets convincing advocate to mutual disadvantage.
On these occasions, a disappointed employer leaves the mediation process along with a disappointed employee. In other words, the representatives have bombed the process. Such an outcome would very rarely be the preserve of a sophisticated negotiator who is able to balance interests and outcomes while never letting go of the overall planned strategy.
There will be occasions where direct speaking is called for, and the mediation process is robust enough to accommodate this. Sophisticated advocates have a way of telling people where to go in such a way that they look forward to the trip. Unfortunately, others do not. Advocates should remember that, even if they have something that needs to be said in a direct manner, the proverbial boot may be on the other foot next time. What goes around comes around. Mediations are not places for show-offs or ego-trippers. Those who think and act otherwise run the risk or the reality that, next time, they may be seeking a favour that simply isn’t there. Represent your client by all means – but do business to do business again.
I mentioned earlier about separating people from the problem. In my experience, not doing this is probably the most common error made in mediation, even by experienced advocates. Put simply, sometimes good people do bad things. The astute advocate knows this and can get the point across in a non-attacking manner. Sometimes, this is best done by acknowledging some of the good things the person has done then putting the behaviour or action in the context of the problem. Remember, the mediator is not the jury, the other party is. As one former mediator put it: “The best way to an employer’s wallet is not through their nose.”
Getting to maybe – dealing with blockages
Finally. I would like to offer some comments on dealing with blockages. Anyone can bluff, bluster or threaten, and that may be a legitimate tactic if you are convinced you’re right, but smart negotiators don’t give up easily. That’s why they succeed. Here are some tips for trying to get through when you know the strategy but obstacles or challenges present themselves.
My first tip is to use the mediator. They have the real advantage of being in each room and being taken into various confidences. Obviously, the mediator will respect the confidentiality of the process, but experienced mediators can give some great advice for moving through or dealing with blockages.
Personally, I like to have parties refocus on their objectives for the day. Often this has the effect of pushing aside the short-term difficulties in the pursuit of a better outcome. Other tactics can include:
- helping the other party find resolution
- running a mile (but not a marathon) in their shoes
- exploring blockages – ask “why?”
- making concessions – give to get
- trying to avoid any loss of face for the other party
- not all solutions are in dollars – what else can go in the mix?
- reconsidering the BATNAs, WATNAs and MLATNAs
- having an exit strategy.
Finally, advocates should remember that history shows the more bitter your enemy, the greater the resistance. In other words, your earlier actions have helped frame this stage of the process so the astute advocate has sown the seeds.
Differences between public and private sectors
In dealing with employment relationship problems in mediation, it is useful to understand some of the differences between the public and private sectors. In the public sector, advocates need to understand the role of central agencies (for example, the Auditor General) and their influence on potential outcomes. All risks are political, and this can drive behaviour. It is often useful to think of more creative solutions, for example, assistance with academic studies. Name, blame and shame tactics don’t normally work past a pretty low threshold, and the public sector’s overall risk analysis is different from the private sector. Often in public sector mediations, departments are represented by people who have recommendatory powers only. My advice is to understand the differences and seek to work positively with the representatives although, in my view, it is appropriate to ask what positions they hold and get an understanding of their authorities.
Mediation has been defined as “a decision-making process in which the parties are assisted by a third party, the mediator; the mediator attempts to improve the process of decision-making to assist the parties to reach an outcome to which each of them can assent”. A key point is that it is a decision-making process that produces an outcome the parties can live with – often not the perfect outcome but an outcome nevertheless. Astute advocates get the best out of the process through having an effective strategy, a realistic appraisal of mutual risk, an approach that optimises the chances of success in a personal sense, including using the mediator effectively, and balancing needs and interests of all participants.
Perhaps Kenny Rogers was singing, in The Gambler, about mediation when he suggested that:
You got to know when to hold ’em, know when to fold ’em,
Know when to walk away and know when to run.
You never count your money when you’re sittin’ at the table.
There’ll be time enough for countin’ when the dealin’s done.
D. Asher, M. Feely and I. Gordon, Handling an employment relationship grievance and coming up trumps, New Zealand Law Society, Employment Law Conference 30–31 October 2008, pp. 93–107.
L. Boulle, J. Jones and V. Goldblatt, Mediation Principles, Process, Practice, NZ edition, Butterworths, 1998, p 3.
R. Fisher and W. Ury, Getting to Yes, Arrow Books, 1988.
 Section 3(a)(v) Employment Relations Act 2000.
 D. Asher, M. Feely and I. Gordon, Handling an employment relationship grievance and coming up trumps, New Zealand Law Society, Employment Law Conference 30–31 October 2008, pp. 93–107.
 R. Fisher and W. Ury, Getting to Yes, Arrow Books, 1988.
 L. Boulle, .J Jones and V. Goldblatt, Mediation Principles, Process, Practice, NZ edition, Butterworths, 1998, p 3.