To mediate or meditate; that is the question. When asked recently about my company’s mediation services, the inquirer said he would call us soon because he needed to learn how to relax. By Charles Cini
Mediation is a useful alternative form of dispute resolution. It puts the process of resolving problems back under the control of the disputants. They make the decisions with the aid of an independent mediator, who assists them but does not dictate a solution to them. There are no court orders at the end of the process, but a successfully mediated outcome will result in a legally binding agreement. Should mediation fail, the parties are not precluded from seeking a resolution in the appropriate court or tribunal.
Mediation is private and confidential (unlike other processes, it excludes media coverage), and voluntary (the parties are there because they want to be, not because they have been directed to).
A mediator must be independent and neutral. LEADR (Lawyers Engaged in Alternative Dispute Resolution) and the Institute of Arbitrators and Mediators set standards for their members. In general, a truly independent mediator cannot be an employee or agent of either party.
Mediation also does away with the hidden costs involved when various personnel have to prepare for an appearance in the Industrial Relations or Equal Opportunity Commission. In mediation, only the disputing parties are involved.
In Australia, the use of mediation services in the community and a number of courts has grown steadily. For example, in the South Australian Magistrates Court last year, mediation was provided in 1000 out of 20,000 cases, of which 594 matters were settled without going to trial. The 594 mediated cases represent an enormous saving, not to mention freeing up court time. A study by the Institute of Company Directors reported that the cost of mediation is about 5% of the cost of litigation.
There is an important role for mediation in the workplace. The 2001 ABS Year Book recorded that the number of reported disputes increased from 556 in 1994 to 727 in 1999, an increase of 30%. The number of employees involved rose from 263 to 460, or a 75% increase. We tend to resort to litigation as the preferred method of dispute resolution. Yet mediation is cheaper and quicker, and could be as effective in the workplace as it is in the general community. As well as saving costs, mediation increases the opportunity for the disputing parties to continue to work together after the dispute.
Another missed opportunity for using mediation is when negotiating workplace agreements. Although settling a dispute in the various tribunals does not seem to involve serious up-front costs, there are many hidden costs (for example, the cost of a human-resources manager handling the matter or of briefing an advocate).
Mediation also has a role in trade unions. As union membership declines, unions have fewer resources. Mediation is a quicker form of dispute resolution, taking up less of officials time.
Mediation does not replace lawyers or unions. Independent mediators can work with solicitors, employers and union officials. Solicitors still have a vital role in independent mediation by providing legal advice to disputants so that they are better prepared for mediation. A union can do the same.
Mediators with experience in human resources have the expertise to guide the parties towards realistic options and outcomes, which means that disputing employees are more likely to continue in their employment after mediation than those who use other forms of dispute resolution. The adversarial system of conciliation and arbitration tends to push the parties apart rather than bring them closer.
Selecting a mediator is important. I recommend a visit to the Web sites of two professional bodies that list members:
- NADRAC at www.nadrac.gov.au/aghome/advisory/nadrac/flier.htm
- Institute of Arbitrators and Mediators Australia at www.iama.org.au.
As the benefits of mediation become increasingly apparent to the community, one hopes it will not be too long before mediation and meditation are no longer confused and mediation will be the preferred form of dispute resolution, alternative or mainstream.
How not to
How not to have a pop star hit
The electric gizmo chain, Sharper Image, wins the “it seemed like a good idea” award. It must have thought it was onto a winner when it invited a former member of the Latin pop band, Menudo, to test out a shiatsu-type massager at one of its New York stores. Ruben Gomez was picked out for his celebrity status and good looks. But, while Gomez was in the vibrating chair, a number of boxes stored on a shelf above him fell and hit him on the head.
Now, claiming he suffers blurred and double vision, not to mention damage to his career, he is suing Sharper Image for $US12 million.
How not to encourage the market’s animal spirits
The patriotism prize goes to Nathalie Sergueiew, codenamed “Treasure”. The British secret service reveals that the double agent, whose work involved deceiving the Germans about the 1944 Normandy landings, threatened to go on strike because British intelligence would not bring her pet dog into the country. Sergueiew was recruited by Germany during World War II and was sent to Britain, where she started to work for British intelligence. Her messages to German intelligence were part of Britain’s Operation Fortitude, which misled the Germans into believing the D-Day landings would take place near Calais rather than Normandy.
But the files reveal that Treasure came at a cost. She was forced to leave Frisson, her wire-haired terrier, in Gibraltar. “Sergueiew was at this time being unreasonable about her dog because she did not want it to go into quarantine in the UK,” said one British intelligence official. Eventually, Treasure relented. She was sent to Lisbon on a secret mission to pick up a radio transmitter from German agents that would allow her to send back messages dictated by the British. The rest, as they say, is history.
How not to be the model employee
The prize for misguided zeal in the line of duty goes to the French security guard who took the law into his own hands when he saw a car jump a red light. Anis Ben Blal slapped a flashing light on the roof of his car, set out in hot pursuit, stopped the vehicle and told its occupants he was a detective. They told him they were the real thing and arrested him. Ben Blal later told a court in Rouen that he did not know it was illegal for a civilian to own a flashing light.
How not to encourage nepotism
Best way to annoy your future father-in-law prize goes to public relations specialist Matthew Freud.
The father-in-law-to-be happens to be Rupert Murdoch. In an interview with Vanity Fair magazine, Freud, who is engaged to Elisabeth Murdoch, described Dad as old-fashioned and inconsistent in his relationship with his children.
“Here’s the weird thing about the Murdoch family,” Mr Freud said. “They believe what they read in the papers.”