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Addressing complaints through

mediation and conciliation

National Investigations Symposium

5 November 2014

Overview

How do we make sense of our terms?

How do we decide if mediation is appropriate?

How does mediation work?

What are the benefits of mediation?

How can investigation and mediation complement

each other?

How do we make sense of our

terms?

Investigating complaints through mediation and

conciliation

X

Investigation c

Rights based

Formal

Focus on past

Focus on facts

Less concerned with ongoing relationship

Mediation/ conciliation

Interests based

Informal

Focus on future

Focus on options

More concerned with ongoing relationship

Mediation

In mediation, with the assistance of a mediator, participants:

listen to and are heard by each other

work out what the disputed issues are and what everyone agrees on

work out what is important to each person

develop options to resolve each issue

develop options that take into account each person’s needs and desires

assess the options and explore what might lead to an outcome that

everyone can live with – a workable agreement

Conciliation

In conciliation, with the help of a conciliator, participants:

listen to and are heard by each other

work out what the disputed issues are and what everyone agrees on

identify areas of common ground

develop options to resolve each issue

receive expert advice and legal information (in some circumstances)

aim to reach a workable agreement

How do you decide if mediation is

appropriate?

Serious, ongoing tensions between an male Administration

Officer and a female Manager. The Administration Officer

has accused the Manager of bullying and refusing to

cooperate with a admin requests

"Everyone else cooperates; why can't she?” “She has

been picking on me since I started.” “I am not the only

one – other people feel the same”. “Ask anyone –they will

tell you that she is a bully”

The Admin Officer has lodged a grievance against the

Manager for bullying and harassment.

The Manager has been finding the Administration Officer very

difficult. He is disrespectful and is reluctant to follow

instructions. When he wants something done, he is intimidating

and bullying towards her.

Recently a conversation erupted into shouting and them

refusing to talk to each other.

The Manager has lodged a grievance against the Admin Officer

for bullying and harassment.

The Director has spoken with both of them. Except for this

tension their job performance is sound. The Director thinks

they are alike in their style, both being quite direct. There

have been no complaints from other staff members about

these either of them. This situation is fairly recent.

Deciding which process

Type of matter

Seriousness

Desired outcome

People involved

How does mediation work?

Model of

mediation Understanding and exploration

Opening

Participants’ opening comments

Reflection & summary

Issue exploration

Private sessions

Negotiation

(Private sessions)

Agreement and

closure

Pre-mediation:

the preliminary

conference

Post-mediation:

participants

implementation

of the

agreement

Problem Solving

Resolution

Future

Past

Agenda setting- identifying the issues

What are the benefits of

mediation?

Benefits

People involved have greater control over proceedings

and outcome

Containment - fewer people involved – more confidential

Confidential

Voluntary

Benefits

Improved access to creative and adaptable solutions

Greater ownership and commitment to the outcome

Increased likelihood of preserving and enhancing

relationships

Quicker resolution

Sense of fairness

Can investigation and mediation

work together?

Sequencing

Assess for suitability

Review – opportunities for participants to resolve

themselves – with appropriate support

Mediation first – if not successful, then investigation

Investigation first – no finding - refer to mediation

Investigation first – finding – “facilitated conversation”

to remediate relationships and plan for future

Increasing likelihood of success

Assess for suitability on an ongoing basis

Be very clear about the beginnings and ends of each of

these processes

Be very clear with participants about how the processes

and roles are different

Usually use different, trained and accredited

practitioners to run different processes

Be cautious of a “sloppy” amalgamation of processes

Fiona Hollier

Chief Executive Officer

LEADR

fionahollier@leadr.info

+61 2 9743 1983