Mediation is Not Discipline

I once had a case between a high-level supervisor and her employee. The Vice President “strongly encouraged” them to mediate. They were also extrinsically motivated by the disciplinary letters they received for failing to be collegial.

While In-Accord was happy about the mediation overture, management considered this an extension of their disciplinary process. The supervisor wanted to use mediation to enforce rules and reprimand the employee.

In my initial conversations with the supervisor, she wanted contrition from the employee rather than the opening of a door to understanding and collaboration. She asked for the presence of an HR representative at the joint session to underscore company policies and expectations. Also, she asked me to speak to the VP so I could hear how far afield the employee was and to hear again that the employee’s behavior was unacceptable.

Ah, another opportunity to clarify what mediation is and is not.

Mediators hope for a future when clients call and say, “We would like to enter a voluntary, collaborative process in which an impartial mediator will help us communicate and negotiate to reach a mutually satisfactory resolution…”

Vanishingly few some start there.

Mediators have professional standards that guide such cases. The overarching one is Impartial Regard, which covers topics like conflict of interest. The core value is that mediators shall “maintain a commitment to impartial regard by serving all participants at all times.” We must remain equidistant from all sides. Our “customer” is the relationship rather than an individual participant.

While mediation can be a forum through which management shares concerns, it cannot be a cleverly cloaked negative performance review. Mediators are ethically bound to resist serving as management’s mouthpiece for scolding staff.

When responding to such situations, we can affirm that we will facilitate management’s needs to an extent. For example, exploring performance concerns is a legitimate agenda item. But we must simultaneously clarify that the opportunity we are carving out is one in which the employee can share their concerns about management.

If management is unwilling to reciprocate this spirit of negotiation and shared exchange, then mediation may not be appropriate.

Another standard is Self-Determination. This guide dictates that participants must “have the capacity and freedom to reach a voluntary agreement” and that parties “should not be acting under fear, coercion, or duress.”

As mediators, we probe to ensure that all participants feel that they have the option to engage.

When management persists in treating mediation as an extension of the disciplinary process, despite our efforts to distinguish how mediation differs from other methods, we do not proceed.

Happily, the supervisor and employee resolved core concerns about their working relationship, miscommunications, and, yes, even the performance issues. And guess what? The performance issues were primarily the result of the first two concerns.