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Mediation - A Way Forward After the Investigation is Complete
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So what is Mediation?
I think of Mediation as having five distinct phases, but it is not unusual to cycle back and forth between these different elements throughout the process. It is not linear, but instead a very fluid process. This flexibility is one of the reasons why mediation is so successful.
Here is a look at the five phases I use when I mediate:
This is just what it sounds like: an introduction to the process, its ground rules, and the steps in the process. This provides an outline for the participants so they know what to expect and can determine if they wish to continue with mediation.
Now is your chance to tell your story without interruptions, with the exception of mediator questions meant to clarify. You can describe the history of the problem and the things that really bother you most. Likely, you will focus on the other person抯 role in the problem and what impact it has had on you. The mediator then has better insight into the situation, and it may also help the other party get a better sense of how you feel. At the end, the other party(s) can ask questions.
Brainstorming/ Creating Options
In this stage, the mediator clarifies the positions and interests of each party, separates facts from opinions or theories, and can make suggestions, but mostly the mediator tries to encourage creative thinking and ensure that the creating is separated from the deciding, so as to avoid eliminating potentially good ideas. These ideas may, of course, be considered as resolutions, but they are more intended to model creativity. No options should be dismissed at this stage even if they seem repugnant at the time.
The mediator will bring ideas from both parties together, perhaps finding ways to link options and create compromise or find ways to collaborate so that both people get exactly what they need most. The mediator can also help the parties reality test by encouraging them to envision the best and worst case scenarios if no agreement is reached. For example the worst case scenario might be that one person will lose their job or that the situation will simply persist until one or both people are physically and/or emotionally unable to continue working.BATNA and WATNA (best and worst alternative outcomes to a negotiated agreement).
Drafting of an Agreement
The agreed-upon resolution can be recorded and terms clarified to avoid misunderstanding. In most workplace situations where the employees intend to go back to working together, the agreement can be simple and will not need any involvement by lawyers. The parties can see the light at the end of the tunnel.
Mediation can seem overwhelming at first, but it is generally less expense, less time-consuming, and more effective than more formal adjudicative processes like going to arbitration or court.
When the investigation is over we have a road map of where we have been. Mediation can help create the road map for where we want to go next. Without a clear plan, the same old problems are likely to resurface. Mediation offers a good chance at a new beginning.
John Curtis, Lawyer, Mediator, Conflict Coach
HR Proactive Inc.
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