In the midst of national health and safety concerns and increasing awareness of sex and race discrimination in the workplace, employee conflict and complaints have soared, with government agencies like OSHA strugging with a hefty case backlog.

As workplace discontent grows, many businesses are using mediators to solve intractable conflict, prevent litigation, reduce costs, and bolster employee satisfaction. These early mediations often have nothing to do with the legal system: they are used to resolve intractable workplace conflict between parties that must get along but don’t know how.

What Mediation Does 

Traditionally, mediation was seen as a last ditch effort to solve a problem, often after a court case was filed and the parties were already mired in litigation. Fortunately, proactive methods of resolving discord -- not just mediations but also workplace investigations and executive coaching -- are now being considered early on in a conflict, instead of simply ignoring the problem until a lawsuit erupts. But, even more exciting is that employers are increasingly recognizing that mediation often works best as a first strategy -- an attempt to nip a conflict in the bud or to prevent further escalation of a conflict as soon as possible.

In workplace mediations, the mediator meets with the disputants and helps them arrive at a mutually agreeable solution. Unlike other avenues of mediation, in a workplace mediation the mediator is primarily facilitator to the parties as they find their own solution to conflict.  The mediator works to thoroughly understand the positions and interests of the parties, and holds a non-judgmental, safe space for them as they do the work to resolve their differences.  In asking questions and demonstrating understanding through reflexive listening, the mediator can facilitate the parties’ own understanding, often for the first time, of the true cause of the conflict -- and thus the potential means for resolution.

Workplace Mediation Is Gaining Popularity

Coca-Cola Enterprises recognized the power of this approach back in 2000 when, witnessing the damage ill-handled employee complaints were wreaking elsewhere, they instituted an alternative dispute resolution program, in which mediation played a crucial role. This perhaps marked the beginning of a trend, because a survey of Fortune 1000 companies in 2013 showed that many large businesses were moving away from relying solely on arbitration, and towards offering conflict resolution programs for employees.

Today, the US Postal Service, Safeway, the Johns Hopkins Health System Corporation, American Express, and many more companies are using neutral third-party mediators to resolve disputes.

When To Hire A Mediator

Companies should consider hiring a mediator in cases when two or more valuable employees -- whom the company hopes to retain -- seem to be in intractable conflict. The process can also be especially effective when one or more of the parties in conflict are perceived as “difficult” by their coworkers, and perhaps seem unable to understand the impact they have on others. While such employees often struggle to receive feedback from coworkers or managers, they are frequently much more willing and able to receive feedback from an outside mediator without a stake in the outcome.

Aside from the mediator’s neutral status, the mediation process itself also helps create a sense of neutrality by giving each party the opportunity to be heard. This often makes it easier for employees to listen to feedback, formulate their own perspective more respectfully, and process in collaboration with others. Unlike the charged context that can hang over an employee dispute where a manager sets out to identify the “good” and “bad” party, and where the “bad” party may be terminated, mediation allows conflict to transform. It creates a container in which both parties can reflect on the dynamics that characterize their conflict, and realize their shared personal and collective interests that can form the basis of solutions and agreements moving forward. Sometimes that collective interest is simply the good of the company that the parties work for, or the organizational  cause they endeavor to support. Regardless, any common interest or cause can be enough to motivate parties to keep doing the work to get along.

Cheaper than litigation and other formal procedures, mediation to resolve workplace conflict often leads to higher satisfaction among opposing parties than they may find in court. Additionally, mediation can often support a business in retaining its most valuable employees, and increasing the ability of those employees to work productively together across difference.

Author: Diana Maier, Partner, who offers mediations in both the courthouse and workplace. For more info on MLG’s court and workplace mediations, click here.

The Maier Law Group is a boutique employment and data privacy firm that specializes in conducting workplace investigations, providing executive coaching, training employees, mediating both courtroom and workplace disputes (between two conflicting employees), and advising and counseling employers on HR and data privacy issues.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly at info@maierlawgroup.com.