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Home > Preparation for mediation participants > Advice for Managers and Supervisors

Advice for Managers and Supervisors

Sometimes employees request that managers or supervissors take part in a mediation. In lieu of step 1 of the administrative grievance, in lieu of traditional counseling or to attempt resolution of any employment related issue. You probably also know that the basic elements of ADR processes involve identification of the interests of the parties and, if possible, development of a mutual agreement that both parties can accept.

Now, you’ve been invited to participate in an ADR process and you may not be clear on exactly what you can and should do to prepare yourself for the meeting. The most productive and successful ADR processes begin long before the parties sit down to bargain. Here are some tips on what you can do that may make the entire ADR process more effective, productive and satisfactory for all parties concerned.

First, you need to eliminate any mindset you might have that ADR is an adversarial proceeding. Neither party has a burden of proof to establish in ADR, as you would in a formal grievance, EEO or MSPB case, and there is no determination of fault or blame. The goal of ADR is to identify the issues, explore settlement solutions, and preserve or mend the working relationship. Keep in mind that the Complainant feels strongly that he/she has been wronged by the Agency, possibly by you or one of the supervisors or managers in your organization, and has sought some kind of relief by pursuing this avenue to have their concerns heard. The Complainant has agreed to ADR in an attempt to resolve the complaint at the early and informal stages. You have been identified because you have the power and authority to explore options to resolve an issue in dispute without costly litigation.

Second, you need to learn all you can on why there is a dispute. The ADR office will provide you with preliminary information. The nature of the dispute, type of discrimination alleged in the case of EEO complaints and the primary issues are identified for review.

Third, take time to analyze the case. Remember to focus on the issues and interests, not the personalities of the parties involved. Think about the strengths and weaknesses of the government’s actions or position. Is this a case that management can settle by making some minor concessions? What are the risks and benefits? Are there other employees in that work area with similar complaints? Think about the strengths and weaknesses of the Complainant’s case. Put yourself in the Complainant’s shoes and think about what would make you whole if you were in this person’s situation. The key is to explore all possible options for resolving the complaint. It might not be just reassignment, money or elimination of an adverse action. There may be other intangibles that can be offered. But consider the impact on the activity overall. Remember that you will have to implement and live with any agreement reached. Again, clarify management’s interests (wants, needs, fears, and concerns.) Identify possible standards (Union agreements, precedents, prior practice, and accepted principles.) Plan a strategy. Think about what you want, why you want it, and what you are willing to give in return. Be creative. The time spent planning will pay plenty of dividends during the ADR process. Planning helps you make concessions, compromises, and justify your interests as negotiations proceed. Planning prevents accepting a bad deal because you were unaware of the alternatives or the ramifications involved.

Fourth, make sure you can implement the possible solutions. If the Agency has exposure and a monetary settlement is being considered, what are the limitations? It is significant to note that during the last year, only one of the settlements reached through the ADR process involved any type of monetary compensation. Remember that Settlement Agreements and all discussions within the ADR arena are strictly confidential.

When you are participating in an ADR process, listen very hard to what the Complainant has to say. Shed any assumptions about what you think the issues are and what you think they want. Turn off the part of your brain that wants to engage in a silent rebuttal every time the Complainant speaks, and instead, listen to what they are saying. It may be emotional. It may not be pleasant. It may take anywhere from one to 4 hours, so make sure your calendar is clear. Be logical, reasonable, persistent, and patient. Let the neutral work their tools and open the lines of communication and negotiation. You may be surprised that all many Complainants want is to have someone from management listen to them as they explain issues from their prospective.

If you have considered the suggestions made above, you’ll know the facts, be prepared to discuss the issues and offer possible solutions. The ADR process will flow and will likely be very productive. You may be surprised at the strong liaison, trust, and credibility you establish with the Complainant from the ADR session. Some of the strongest advocates we have of ADR are former Complainants – not because they got what they wanted, but because a member of management cared to listen to them and helped them develop a mutually satisfactory resolution. Give these suggestions a try. They may make all the difference in the outcome of the ADR session.

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The "European Mediation Academy" (emeac) was approved as an IMI Qualifying Assessment Program by the International Mediators Institute (IMI)  in January 2019. 
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Victor Schachter, a well-known business mediator and distinguished ex-lawyer from the United States, a great partner Law Firm Fenwick & West LLP, Silicon Valley, California and President of the "Foundation for Sustainable Rule of Law Initiatives"  was spüeaking in Zagreb about the chance for attornes to see mediation as an opportunity. He made it interesting, attractive, straightforward and clear for Croatian lawyers how mediation can simultaneously increase the profitability and satisfaction of attorneys in everyday work.
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