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MEDIATION JOURNAL


Advocating mediation in bus iness


Ask the Experts


What is the difference between ’workplace’ and ’employment’ mediation?


There is no formal or legal definition distinguishing the two terms. The expressions are often used to differentiate between those disputes where the parties are hoping to preserve or restore the employment relationship (workplace mediation) and those where the


relationship is to be terminated (employment


mediation). The distinction, however, may be academic, since those workplace disputes which are not resolved may well result in the termination of the employment relationship. The term ‘workplace mediation’ is usually attributed to the more informal process used to mediate internal grievances and issues between employees or teams. Employment mediation is invariably associated with more formal legal proceedings in or leading up to a Tribunal, such as cases of constructive or unlawful dismissal, or cases of sexual or racial discrimination.


Both forms of mediation operate with the same values of impartiality, confidentiality, and are ‘without prejudice’ and voluntary.


WHY? ? WHO? WHAT? WHERE? ? WHEN? ?


Are there cases when mediation cannot or should not be used?


Mediation is appropriate in most disputes. Wherever two or more persons are in conflict it is nearly always beneficial to have a neutral third party assist in facilitating a dialogue. Mediation succeeds even where round-table discussions and negotiations have failed. However, mediation may not be appropriate where there are allegations of a criminal nature, although it can be a matter of degree as to the nature and gravity of the allegations. For example, in an employment dispute where one of the allegations involves ‘fiddling expenses’, it may nevertheless be a judgment call as to whether it is appropriate and helpful to proceed with mediation, despite the criminal element. However, if criminal charges are dropped, or if the criminal case has been completed, mediation can be used as a form of restorative justice in the course of or following criminal proceedings. In such cases it is recommended that a mediator experienced in


restorative justice processes


be used, as the model and procedures are different to those in workplace and employment mediation.


The parties are too far apart, wouldn’t mediation be waste of time?


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Mediators are invariably confronted with parties who are ‘miles apart’, yet they can facilitate the narrowing of the largest of gaps.


accustomed to – and have normally been trained to deal with – polarised and entrenched positions. It will very rarely prove to be a waste of time to mediate.


One party has said, ’I do not wish to be in the same room as him/her, let alone sit around a table and have to compromise’, how do I deal with this?


This is very common, and encouraging the parties to talk to a mediator may help. The mediator can explore the reasons for their reluctance and their concerns and fears. It may be that they are worried they will not be able to say what they need to say, or perhaps that they will be unable to remain calm and unemotional, or that they will get angry and inflame the situation, or


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