by J. Mang’erere – Advocate & Professional Mediator

A major trend emerging on the Kenyan employment scene is the creation of workplaces that are more collaborative and less confrontational, more team-oriented and less hierarchical. Employers and employees alike are realizing the absurdity of dealing with each other as adversaries when they must produce goods or perform services together. With the enactment of the new employment Act no 11 of 2007, Employees rights have now been clearly defined and declared and the penalties for breach of any of its provisions have been clearly articulated. Forward-looking companies are investigating management and production systems that emphasize informed participation, decentralized authority and expanded responsibility. Consistent with these goals, they are finding that mediation is the best dispute resolution process.

Workplace mediation offers important benefits to employers and employees alike. It provides fast, creative, mutually satisfactory resolutions. When a dispute is mediated shortly after it arises, the chances of optimal resolution are much greater: the parties’ differences have not had a chance to fester, the situation is generally more fluid, and the parties have more resolution options available to them. Mediated resolutions work better and last longer than authoritatively imposed resolutions because everyone involved buys into them. Moreover, mediation fosters mutual respect through improved communication. Mediation can mend and preserve frayed working relationships, even when the parties are extremely angry.

Many disputes arise out of a failure by either party or both parties to communicate, understand or consider the needs and interests of the other. People fix their attention on the question, “Who is right and who is wrong?” and become blind to the possibility that both may have a legitimate point of view.
Mediation within the workplace generally looks very different from mediation within the context of litigation. The primary goal of workplace mediation is to leave the parties better able to work together. Traditional “settlement conferences,”(Caucus) in which the mediator separates the parties and shuttles back and forth between them, often will not be adequate to this task; the parties will need to work through their differences together

WORKPLACE MEDIATION

Workplace mediation is a process through which parties in a work or work-environment-related dispute attempt to resolve issues with the help of an impartial third party. The third party is called a mediator. The mediation process is usually voluntary and confidential. Commonly, mediation is handled without the presence of lawyers and without the involvement of the court system.

Sometimes complaints, grievances, and disputes develop in the workplace. An employee may feel he’s been treated unfairly or disagree with company policies, for example. An individual may feel harassed or bullied. Team efforts may break down, and people may become less cooperative than normal. When conflicts occur, a workplace mediator may be called in to assist the parties with solving the problem and finding a way to continue to work together productively.

Mediators are often trained in dealing specifically with workplace disputes. These experts understand the importance of remaining impartial, so neither party feels ganged up on or ignored. They also understand the process and how to guide the parties to a solution without placing blame or imposing solutions. Since mediation is often voluntary, it is important for the sessions to remain emotionally neutral and productive to avoid a breakdown in the process.

Workplace mediation may seem like a process that is reserved for serious conflicts, but it may also prove helpful for putting a stop to conflicts before they become serious. Workplace mediation may even be productive after a conflict has been resolved, helping to patch up strained workplace relationships.
The success of workplace mediation typically depends not only on the skill of the mediator, but also on the willingness of the participants to cooperate. For the process to work well, the participants usually have to desire a solution that allows them to continue to work together. This often means discarding hopes of winning in favor of solving a problem quickly.

There are some workplace conflicts in which mediation may be considered inappropriate. For example, mediation may not be appropriate if one of the parties feels threatened by the other and fears for his physical safety. If parties are forced into workplace mediation and do not wish to cooperate, the process is likely to fail. If either party feels that a court’s judgment and legal action are necessary, he may be less likely to put effort into finding an agreeable solution in mediation. Since a mediator cannot force a solution, his efforts may be wasted in such cases.

Many human resource professionals have been mediating workplace differences for years, generally informally and often without appropriate recognition or value accorded to their efforts. Some of these managers are now seeking mediation training in order to be able to provide a more formal, structured mediation process to coworkers in conflict. As their understanding of the mediation process deepens, these managers are also finding that there are some disputes in which they cannot function as effective mediators, no matter how skilled they are. Sometimes one or both parties cannot trust another company employee to be neutral or to maintain confidentiality, both of which are essential to a successful mediation. In these cases, managers are bringing in outside, professional mediators. Especially where the dispute could end up in litigation if not resolved, this assistance is well worth its relatively low cost. There is one institution that is currently offering workplace mediation training In Kenya .i.e. Mediation Training Institute East Africa (MTI East Africa) which is an affiliate of MTI INTENATIONAL USA. For further details on courses on offer you can visit their website www.mtieastafrica.org .

Virtually any difference that arises in the workplace can benefit from mediation if the parties are willing to deal directly with each other and if the company has trained workplace mediators. Indeed, over time, a workplace in which mediation is the preferred or presumed dispute resolution mechanism is likely to become a workplace in which colleagues and coworkers need less assistance in working through differences and begin to be natural collaborators.

The following are types of workplace conflicts in which any company would be well-advised to offer mediation. These include:

SEXUAL HARASSMENT COMPLAINTS;
People often assume that parties to a sexual harassment complaint cannot work together to resolve the dispute. That assumption can do both parties a disservice. Many hostile environment complaints arise as a result of differences in perception about what is funny or flattering and what is offensive behavior, or they arise as a result of one person’s failure to respect the other or to understand the effect of his or her behavior on the other. If the parties are willing to talk with each other, these complaints can be mediated to excellent conclusions. The employer can save its relationship with both employees and avoid an expensive and painful lawsuit.

DISPUTES BETWEEN EMPLOYEES;

Sometimes interpersonal differences prevent coworkers from functioning effectively together. If the company needs both employees and needs them working together harmoniously, mediation can be very effective. The employees are offered a controlled setting in which to air their differences, guidance in communicating effectively about them, and a chance to make agreements about how they will function together in the future.

DETERIORATING PERFORMANCE;

A good employee can stop performing well for many reasons. Often, when the manager attempts to address the problem, the employee responds with fear and defensiveness, resulting in further deterioration. Mediation between them can help each understand the other’s needs, requirements and requests and can yield an agreement about how they will work together in the future. Both are more likely to observe such an agreement because both had a hand in creating it.

TERMINATIONS;

When an employer chooses to terminate an employee even though the termination poses litigation risks, mediation on the terms of the separation can be very helpful. Through the mediation process, the employee has a chance to communicate severance needs and to affect the nature and quality of the severance package, while the employer has an opportunity to eliminate its litigation exposure. Mediation can also be beneficial emotionally: the employee may never agree that the termination was warranted but will more likely feel that he or she had a fair hearing, and may come to understand the reasons for the employer’s action. These realizations can make it easier for terminated employees to move ahead with their lives. Further section 41 of the new employment Act no 11 of the laws of Kenya demands that before an employee is either dismissed from service or is terminated from employment , he must be given a hearing , this refers to mediation

Implementing an effective workplace mediation program will require a company to undertake two basic tasks:

1. Establishing a panel of mediators by training its managers and supervisors to acquire workplace mediation skills.
2. Promoting general workplace acceptance of mediation as a dispute resolution mechanism by weaving it in its policy manual or in the company’s terms and conditions of service.

Workplace mediation is a non-prejudicial process. In the event that the mediation does not arrive at a resolution or where an agreement subsequently breaks down employees are therefore entitled to pursue further action either by making a formal complaint to the labor office or taking legal action at the industrial court under the new labor laws.

Mediation of workplace disputes is the way for the future. It achieves the most satisfactory, timely and cost-effective resolution of disputes. It is also helpful in creating a collaborative workplace culture. Employers interested in bringing these benefits to their workplaces should incorporate mediation into their dispute resolution programs and train their staff accordingly.

‘The Government should challenge all employer and employee organizations to commit to implementing and promoting early dispute resolution, e.g. through greater use of in-house mediation, early neutral evaluation, and provisions in contracts of employment’.

J. Mangerere Advocate – Professional Mediator