Workplace mediations can be valuable tools for expelling conflict from the workplace without resorting to litigation. There are many possibilities for their use, including resolving conflicts between employees, managing an employee’s work performance, and introducing operational changes. But mediations can swiftly sail into hot water when one of the parties becomes difficult to deal with. It is then that the mediator’s skills come to the fore in keeping the mediation on track, and the parties striving to achieve a resolution. 

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WHAT IS MEDIATION?

Mediation is a process of discussion and negotiation. It requires an open channel of communication between the parties. The mediator is an impartial third party who guides the parties to resolution. The parties can meet face-to-face and may also break off into separate groups so that the mediator can speak to each group privately to find out more about their negotiating positions.

Successful mediation generally requires all parties to make concessions when it comes to their behaviour, which is often made easier by parties gaining an understanding of the perspectives and feelings of all those involved in the dispute. But what do you do when a party becomes difficult?

WARNING SIGNS

Professor John Wade of Bond University’s Faculty of Law describes a difficult person as someone who behaves in a manner detrimental to their own interests or the interests of the wider community. They may stonewall negotiations, or delay or refuse offers. They may make ridiculous offers.

Difficulties may also arise because of:

• Habit.
• Perceived cultural differences.
• High emotions.
• Strategy. For example, yelling, public humiliation, refusing to negotiate.
• Illness (physical or mental).
• The person being intent on protecting earlier decisions, regardless of how inappropriate they may have been.

All of these things can derail a mediation. A mediation can be terminated by the mediator at any time for lack of cooperation. It’s not ideal, but there’s no point in continuing the mediation if no progress can be made.

STRATEGIES FOR DEALING WITH DIFFICULT PEOPLE

Skilled mediators use various strategies to deal with difficult parties, many of which can also be adopted by the parties themselves. These strategies can include:

• Brainstorming prior to the mediation to work out how you might respond to any allegations made by a difficult person.
• Active listening – listen to and repeat back what each person has said so that they feel affirmed and validated.
• Open ended questions, for example, “help me to understand what you meant when you said …”
• Slow down the conversation, allowing gaps so the parties can collect their thoughts.
• Set a time limit for the discussion. It may be that more than one session will be needed so that the parties have more time to consider the issues.

Reading body language can help with understanding what is affecting or upsetting a person. Objectivity is also essential – adding more emotion to an emotionally charged situation will not help anyone.

Professor Wade says that the most effective way of combating difficult behaviour in mediation is to encourage the person to bring along a “wise friend” – in other words, a trusted voice of reason for that person to confide in and listen to.

MEDIATION WORTH PERSEVERING WITH

It’s not ideal to have to deal with a difficult person in mediation, but in the majority of cases mediation even under such circumstances is preferable to resorting to more formal measures to resolve an issue, for example an application to the Fair Work Commission. A skilled and impartial mediator can very effectively steer a mediation to resolution and deal with difficulties along the way. It’s a worthwhile investment in longer-term workplace harmony and productivity.