Workplace Mediation

by William H. Donahue, Jr., Esq., APM

Sometimes it's the little things at work that drive you crazy. It may be the boss who talks to you like you are five or the guy who thinks everybody in the office loves the same music he does. And sometimes it's big things, like sexual harassment. Whatever the problem, conflict at work causes good employees to quit, drains away morale and productivity and leads to expensive, often very public lawsuits. A growing number of companies are using in-house mediation programs to give their employees an effective, private and cost efficient way to resolve almost any work place problem.

Mediation offers people a way to resolve a complaint or problem quickly, fairly and confidentially. A mediator can guide the parties through a process of non-adversarial negotiation in which every one involved has a chance to air grievances, listen and be listened to by the other side, identify common and diverse interests and develop solutions to the problem.

A tremendous benefit to mediation over other forms of dispute resolution is that the parties come up with their own solutions. This is both empowering and satisfying for most people, and helps prevent future disputes in a way that solutions imposed by an arbitrator and judge do not. The Equal Employment Opportunities Commission estimates that more than 85% of the workplace disputes it mediates are settled. Many of these cases could have been settled in-house without ever involving the EEOC if the companies involved had offered mediation.

Sexual harassment is a common workplace problem that can be resolved through mediation. Take the example of the worker who really likes her job, and has always liked her boss, but lately feels he has been making inappropriate and offensive comments to her and repeatedly asks her to go out with him. If her company doesn't have a mediation program in place, she has several options. She can complain to someone at the company. That will most likely start an investigation that will result in the company taking action against the boss. If the worker still isn't satisfied, she can file a complaint with the EEOC and eventually even a lawsuit in Federal Court.

But what most people in her situation want is to resolve the problem and go on with their lives and their work. In this case, the worker wants the harassment to stop, and she wants an assurance that she won't be harassed in the future. She also wants an apology. Mediation is the ideal forum for her to get all of those things, keep her job and resume the cordial relationship she had with her boss before the problem arose. In mediation, the worker and her boss will sit down with a mediator and try to figure out the interests they have in common, and a solution that will meet those interests.

Setting Up an In-House Mediation Program
There are several ways to set up a successful in-house mediation program. The key to all of them is to use a well-trained mediator. The mediator may be an employee who has been trained in conflict resolution and negotiation techniques. This works well in larger companies, but since it is important that the mediator be neutral, using employees can present a problem in small companies where everyone knows everyone else personally. When this is a problem, the company may want to use a professional mediator on an as-needed basis to mediate disputes.

Mediation is the only sensible solution to the current litigation crises in this country. Private companies, state and federal agencies, labor unions and large, publicly traded corporations are using it to resolve a wide variety of workplace disputes. As retired Supreme Court Justice Warren E. Burger said, "Traditional litigation is a mistake that must be corrected. For some disputes trials will be the only means, but for many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, and too inefficient for really civilized people."