perceived or real and now escalated. People often wait to file a grievance for a number of reasons; hoping the issue will resolve itself, uncertain if they have a legitimate complaint and unaware of the proper channels to pursue, fear retaliation will make the situation worse; not seeking recourse until they are mentally and emotionally exhausted and have reached their last straw. All reasons to stress a workplace culture of early resolution and Mediation versus reliance on the grievance process to address workplace conflict. Mediation in most cases will usually be the best first option. However, it is not always the best option overall. As mentioned above, it is future-focused. If the individuals participating need to remain in relationship, repair a broken working relationship and reconcile the issues, then mediation in most instances is best. On the other hand, if a party is seeking justice for wrongdoing it is important to acknowledge that mediation is not a fact finding and disciplinary process. It is also worth noting that all rights or entitlements to engage other resolution channels that are available to a party before mediation are also available to the party after mediation, whether successful or not. Then there is the elephant in the room. As HR usually owns the grievance process, impartiality may be questioned. The benefit of the service we offer is that we provide external third-party mediation and other ADR tools in cases where HR or an internal leader serving as the mediator may not be viewed as equally independent and impartial to the matter. Additionally, the initial and ongoing cost to maintain an internal mediation program is often underestimated and possibly considerably more to upkeep than outsourcing an external mediator with BMS when you consider the logistics, coordination, costs, training and continuing education. How should a mediator establish trust and rapport with the subjects of workplace mediation? Establishing trust and rapport is essential to mediation starting off on the right foot. At BMS, we place a great deal of emphasis on empowering the participants to determine if mediation is the best option and being intentional in determining whether we are the most capable assist. Our approach is: even if you do not choose us, choose mediation. Most cases start off with an initial meeting with the HR leader and senior leader of the parties for organisational goals and context as to how the conflict is impacting the workplace, which are usually macro concerns in comparison to the individual and personal issues the parties may bring to the mediation. We go the extra mile also meeting with each participant 1:1 in a brief pre-mediation meeting to discuss the overview of the mediation process, expectations, logistics and the questionnaire pre-work. This is where the participant is also given the opportunity to address any concerns he or she may have about participating in the process, which is especially important for our firsttime mediation clients. Additional resources, frequently asked questions and tips are provided in follow-on communications, in addition to a bio of the mediator’s experience 46 LAWYER MONTHLY NOVEMBER 2023 We never walk into a mediation talking to the party for the first time.
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