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Why Choose an Emverio Workplace Mediator?

Why Choose an Emverio Workplace Mediator?

Emverio Workplace Mediations is part of a larger group of workplace solutions (check out Emverio Workplace Investigations and Emverio Whistleblowing and Complaints).

Our commitment is to develop long term relationships with our clients to support your team improve workplace relationships, with all its ancillary benefits, including; improved individual and team health, improved productivity and ensuring compliance and mitigating any associated risks managing complaints, upsets and disputes.

Five Reasons: Why choosing Emverio is the Best Choice?

  1. All Emverio workplace mediators use the same model across Australia.

This means that national and international clients know exactly what they are getting whether its’ head office is in Sydney, Melbourne or Hong Kong, and the participants may work from different locations (from cities to the regions), or the team may work in multiple locations.  The Emverio mediation model is consistently applied no matter which mediator you choose, or whether it is delivered in-person or online.

  1. The workplace mediation model is designed specifically for workplaces.

Choosing an Emverio Workplace Mediator means that you a choosing a mediation model that is designed specifically for workplaces. The traditional mediation model (that the Australian National Mediation Accreditation Standards is based on) has evolved from business to business and court ordered mediations.  Negotiations assume that the parties will have minimal, if any, contact post mediation.   This means that the theories underpinning our national model of mediation need to be adapted specifically for workplaces where relationship is key,  because, in the main, after the mediation has been completed, the participants have to engage directly with each other.  Our mediation process recognises this and focuses on the relationship and whether it can be repaired, and if it can, what it could look like.  Furthermore, the model is contracted into a 1 – day model.  We have found that this is the optimum period of time that’s required to get successful results.  We understand that post-mediation infrastructure is crucial to the long-term success of building constructive relationships and incorporate post mediation strategies as part of our model.  And, finally, we understand how important your feedback is to the continuing development of our professional practice and actively engage to obtain this from you.

  1. Our mediators participate in monthly professional development

Emverio workplace mediators are asked to participate in monthly online professional development sessions.  We look over our own processes, review client feedback, share skills and expertise, and have guest speakers from time to time to present on contemporary workplace issues.

  1. Our mediators report to a National Practice Manager and Emverio Workplaces has a complaints process.

All mediations are overseen by a National Practice Manager and if you have any issues or problems you can contact her directly.  All complaints are taken seriously and actions taken to counsel, improve and repair your concerns.

  1. You have a wide choice of mediators with multi-disciplinary approach.

We have twenty mediators conducting workplace mediations across Australia.  For more information about our team click here.  We also can accommodate online workplace mediations for your convenience.  There are benefits conducting your mediation online,  including;

  • Parties are not in the same room so the tensions are not as intense.
  • Less costs associated with logistics (travel / parking).
  • Greater flexibility.
  • Participants can be undertaken at home.

We have found that online mediation feel different.  However, the online forum does not detract from the parties participation and capacity to reach agreements.

To find out our results from our last 100 workplace mediations click here

Some of our feedback between March – June 2020:

The mediator was outstanding, very personable, she articulated the process really well, exceeded their expectations, the mediation process was wonderful. The mediator was very thorough leading a very clear process. (New South Wales)

The mediator was able to draw out issues which was positive. Bringing issues out in the open which has helped tremendously. (Queensland)

The mediator was insightful, able to pick up cues in terms of interaction with the participants. Different cues – where they participants were coming from. They were reluctant participants to begin with but she handled it well. Very likely to recommend services. (New South Wales)

The mediator was excellent and the whole mediation process was fantastic. Could not fault it. (Queensland)

The mediator was very good, very calm, controlled, had a thorough overview of process, impartial. (Perth)

The actual mediation process was fine. The mediator was really good, very easy to talk to, allowed for frank and open disclosure / discussion. Using the service again at another facility. (Melbourne)

Engaged the Mediator to assist with two matters (coaching only, did not proceed to mediation, yet). In both cases employees who had been moved to another area as part of restructure had not settled into new roles. One employee refused to participate in mediation, the other is currently on leave, may request mediation. The management coaching and tools provided by the Mediator was very valuable and the participants appreciated that very much which assisted and supported them to move forward. However, neither matter has been settled so would really like to engage in mediation hopefully with other participant. The Mediator was the right person for this, and they would not hesitate to get her back. The mediator understood the business. The participants found the mediator good to work with, great style, understood the business and personality types very well. Will not hesitate to be in contact if it proceeds to mediation in the future. (New South Wales)

Engaged the Mediator to assist with two matters (coaching only, did not proceed to mediation, yet). In both cases employees who had been moved to another area as part of restructure had not settled into new roles. One employee refused to participate in mediation, the other is currently on leave, may request mediation. The management coaching and tools provided by the Mediator was very valuable and the participants appreciated that very much which assisted and supported them to move forward. However, neither matter has been settled so would really like to engage in mediation hopefully with other participant. The Mediator was the right person for this, and they would not hesitate to get her back. The mediator understood the business. The participants found the mediator good to work with, great style, understood the business and personality types very well. Will not hesitate to be in contact if it proceeds to mediation in the future. (New South Wales)

Situation is the best it has ever been. Perfect way of dealing with the problems which arose. Highly recommend Emverio for any future and ongoing mediations. (New South Wales)

Your questions about workplace mediation answered

If you’ve never undergone workplace mediation, you’ll most likely have some questions about what it involves.

Used as an informal mechanism to resolve a range of issues or disputes within the workplace, workplace mediation is a process where an impartial mediator facilitates a discussion between individuals or groups involved in a dispute, with the goal of reaching a mutually agreed-upon outcome or solution.

To help you prepare for workplace mediation, we’ve answered some of the questions you’re probably already asking.

Is workplace mediation a voluntary process?

Yes, participation in workplace mediation is voluntary. We recommend that you consider an invitation to a mediation as an opportunity to demonstrate your skills in being able to navigate conflict in a safe environment.

If you’ve been requested to participate in workplace mediation, and you are unsure, you should at the very least attend on the one on one pre-mediation session (often referred to as an intake) before making a decision about whether or not you want to proceed to the joint session (with the other party).

If you are worried about your emotional or psychological safety, ask the mediator how they will keep you safe through the process.  Remember you can always leave at any time, stop for a break and / or terminate the process if you need to.

Workplace mediation is often used to help resolve issues which are not serious enough to warrant formal legal intervention, yet still need to be addressed.  Such as; communication breakdowns, professional disagreements, issues with conduct, the fair allocation of work (rostering for example) and the rules around how to share and look after limited resources (such as photo-copiers, equipment, cleaning of cars) or to resolve a past incident.

Mediation (or facilitated discussions) are usually offered where participants have been unwilling, or unable to resolve their concerns directly with each other.  It is offered so that you can proactively participate in the resolution any outsanding issues locally to avoid it being escalated further.

Where an issue can’t be resolved through mediation, then the employer needs to determine what, if any, further initiatives need to be administered.  This usually involves them looking their policies and procedures and commonly include instructing participants to attend; training, counselling, performance reviews, issuing specific lawful employment instructions (for example; you must demonstrate that you can work together in a constructive way) and or more formal interventions (depending on the conflict) such as; disciplinary action.

Is workplace mediation legally binding?

Generally, the agreements reached during mediation are not legally binding unless the participants each sign an agreement to that effect.

Where the parties involved each sign a settlement or deed in relation to the mediation agreement, the agreement can be enforced like any other type of contractual agreement.

However, endorsed Emverio Workplace Mediators are committed to making real workplace relationship differences and not just capturing proscriptive agreements that need to be monitored and enforced post-mediation.  The most important shift we look for in workplace mediation is the intention of the parties and their commitment moving forward.  Any agreements reached is an expression of this.

How long does workplace mediation take?

The mediation process can usually be completed in one day (or over several depending on your business requirements) and includes:

  • 3 x pre-mediation sessions (employer and each of the parties) to outline the process and objectives and define the roles and responsibilities of each party, help you prepare for the joint session, align everyone’s expectations and address any questions that you might have.
  • a joint facilitation session where the mediator will manage the conversation between the parties involved, with the aim of providing a safe space for the parties to explore what’s happened, how they got there, whether they can work together moving forward, and what they are willing to commit to moving forward.

At the end of the session, if agreements are reached the mediator will work with the parties to capture their intentions and provide all parties with a copy of that.

Who would normally attend workplace mediation?

Generally, you would find the following people attending a workplace mediation session:

  • The mediator: The role of the mediator is to facilitate the discussion between each of the parties involved, helping them to clarify the issues, share their points of view, and consider their options moving forward.
  • The parties involved in the dispute: In a business context, this could include individual employees, teams or groups of employees, managers or contractors.
  • Representation from management or HR: While they won’t generally attend the joint facilitation session, as they have a vested interest in resolving the issue, we invite them to attend the pre-mediation session to understand what their expectations are, explain how the mediation process will be managed, and what we will be providing them post mediations.
  • Support people: participants can request to have a support person attend with them and should speak to their mediator at their intake session. A support person could be a friend or family member, but we don’t recommend that it is someone from the workplace. The support person’s role is one of emotional and psychological support, and as such, the support person cannot advocate or speak on behalf of either party at the mediation and will be subject to the same confidentiality conditions as participants.

Can you mediate online and what about COVID?

All our intakes (pre-mediation sessions) can be conducted via the telephone (or online) and our mediations (joint sessions) are conducted online using the platform zoom.

We have discovered some unintended benefits to using a virtual an online platform to conduct our workplace mediations, including;

  • You can choose any of our mediators now, as they are no longer restricted by jurisdictional boundaries,
  • Parties are less anxious because they are not required to be in the same room,
  • Parties can conduct these sessions in the privacy and comfort of their own homes without any risk of being interrupted or viewed by co-workers,
  • No more logistical issues with parties who are interstate and travelling,
  • The mediator has control over who is speaking and who can participate in private break out rooms, and finally but also importantly,
  • No more parking or associated travel costs.

Emverio Workplace Mediators are experienced online practitioners and we already have conducted many online mediations.  All you need is a device with audio and video capabilities, the internet, the zoom application and a private comfortable space.

Who pays for workplace mediation?

The cost of a workplace mediation is the employer’s responsibility.

What happens if an agreement can’t be reached through mediation?

This will largely depend on the nature of the issue or disagreement and the businesses issue-management policies and processes.

If an issue cannot be resolved informally through workplace mediation, the business may need to consider other more formal options such as:

  • counselling,
  • issue lawful instructions,
  • training, coaching,
  • disciplinary action,
  • performance management, or
  • legal proceedings.

Do you need workplace mediation assistance?

At Emverio Workplace Mediations, our national team of experienced and accredited workplace mediators, facilitators, trainers and coaches can support your team to promptly and amicably resolve a range of workplace issues and disputes.

Find out more about workplace mediation with EWM here.

I’ve got a crush on my co-worker. Can I ask them out on a date?

Can you ask a co-worker out on a date?

The long and the short of it in most situations is yes. But not persistently, repeatedly or creepily. What constitutes ‘creepy’? Well, for example knowing they are in a relationship and still asking them out on a date, persistently asking despite them indicating that they are not interested, asking in inappropriate or embarrassing situations, constantly making comments about what they are wearing and their appearance, standing too close, inappropriate touching or brushing past them, buying inappropriate gifts, following them, or sending lewd messages, texts or pictures.

However, in practice the situation can be quite ambiguous and may be perceived very differently by the parties involved, as illustrated in this real-life case study.

Case Study

As always, to be better prepared you do a bit of research and find out that your workplace has a formal sexual harassment policy (for free information about what needs to go in a sexual harassment policy click here). However, your workplace polices are completely silent on whether having a relationship with a co-worker is appropriate.

You dig a little deeper and find out that sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth) and your local State legislation. You discover;

  1. Sexual harassment is any unwanted or unwelcome sexual behaviour where a reasonable person would have anticipated the possibility that the person harassed would feel offended, humiliated or intimidated. It has nothing to do with mutual attraction or consensual behaviour: Australian Human Rights Commission.

You also find a reference to a case example of an employee in a small food company who claimed the owner repeatedly asked her out, as well as frequently kissing her on the cheek and commenting on her looks. This behaviour could constitute sexual harassment.

Apart from the issue of what may be sexual harassment, under some circumstances even consensual personal relationships between co-workers may breach a workplace code of conduct. This is a controversial and contested matter and, depending on the context, a ban on consensual sexual relationships between co-workers may be legally unenforceable. However there have been several cases of senior executives being summarily dismissed after intimate personal relationships with a co-worker have come to light. For example, late last year McDonald’s global CEO was dismissed over a consensual relationship with another senior employee, while previously there was a dismissal involving Intel’s chief for what the company described as “a violation of Intel’s non-fraternisation policy”. Provided a workplace’s professional code of conduct is clearly published and explicit, it may well be enforceable and in practice there may be a very fine line between what is viewed as a ‘private’ consensual relationship between co-workers and one which is deemed inappropriate and unacceptable within an organisational culture.

  1. Some examples of behaviour that may be sexual harassment include:
  • Sexually suggestive comments or jokes
  • Intrusive questions about your private life or physical appearance
  • Inappropriate staring or leering
  • Unwelcome hugging, kissing or cornering or other types of inappropriate physical contact
  • Sexually explicit text messages, images, phone calls or emails
  1. BUT what if it didn’t happen at work, how can you be held liable for inappropriate conduct or sexual harassment when it happened off-site? You also find out that a workplace includes:
  • where the harasser and the person being harassed work together even if offsite
  • on the phone, via text, messenger, social media
  • on work-related trips, conferences, training events, office parties and functions
  • education institutions
  • in shops, restaurants or anywhere goods and services are provided.

After looking at your workplace policy and undertaking preliminary enquiries (speaking to both parties), you decide that under these circumstances and based on the above the manager’s behaviour could constitute sexual harassment and actually could be quite serious.  You are worried because if you don’t do anything the complainant might lodge a complaint to an external body like HREOC or your State Commission. But if you go ahead and do something then the manager might make a complaint about you! And, on top of it all, you have been working with the manager for a long time and feel compromised.

What do you do now?

In previous and future videos you will hear me make suggestions to encourage the parties to try and work it out between themselves in the first instance. However, there are a few reasons you wouldn’t encourage this under these circumstances:

  1. This complaint is serious.
Low level complaints are complaints that even if substantiated are unlikely to attract disciplinary action or termination. Serious complaints are those complaints that if substantiated may attract disciplinary action or termination.
  1. The power imbalance. The complainant reports to the person she is complaining about.
  2. The response of the manager does not demonstrate any insight into his behavioural responsibilities.

Because you have now decided that this complaint is serious you need to make sure that you follow your internal workplace policies and procedures. Generally, the first step would be to undertake a robust workplace investigation into the allegations raised by the complainant.  You can do this internally, or you can engage an external provider to undertake this investigative work. Once a workplace investigation has made Findings about the allegations then you (or a more senior person) can determine whether further action is warranted based on that investigation report.

Undertaking a workplace investigation takes skill and can be very complex. We are not covering workplace investigations under this present topic, but we will have a separate discussion on this important area soon.  So, ‘Like’, share and subscribe for further updates.

Anna Faoagali
National Practice Manager
Emverio Workplace Solutions
Workplace Mediations, Workplace Investigations, External Whistleblowing and Complaints

Resources:

Human Rights and Equal Opportunity Commission

Legislation
Sex Discrimination Act 1984 (Cth)

Can my employer instruct me to speak only English in the Workplace?

Case Study

An employee complains that staff are speaking in their native language, which is making them feel excluded from participating in the conversation. The employee is also starting to feel very self-conscious whenever they do this and feels that they might be talking about her. She doesn’t understand why they need to do this when they can speak English and they know that she can’t understand their language at all. You [manager] bring this concern up with them, and they say that it’s just a really great experience to be able to speak in their native tongue from time to time because they can express themselves better in their first language, and sometimes it’s just easier. They don’t think it’s fair to stop them from speaking their own language when they are talking together, as a blanket rule in the workplace.

One way of dealing with this dispute about what is reasonable is to firstly look at what the law says and find out what you can and can’t do. From your research you find out that you might be able to direct all staff to speak English, because:

  1. They can all speak English; and
  2. Your request is an attempt to resolve conflict and not related to race / ethnicity or origin.[1]

However, you also find out that banning employees from speaking their first language all the time might be unreasonable and may constitute racial discrimination[2].

You find out that you need to exercise caution when issuing directives to employees and need to make sure it is made on grounds other than the ground of the employee’s race.

You decide that it is reasonable to instruct staff to speak English when they are in the presence of other staff who can only speak English. However, on tea breaks or when there aren’t other staff around then staff can speak in their first or alternative language, as long as it doesn’t exclude anyone. Everyone agrees (at least to your face) that this seems like a reasonable compromise.

However, over time the relationships between staff seem to grow more tense. You notice that the friendly bantering has stopped and that the tea room has started to be segregated. You enquire and find out that there is a lot of resentment about not being able to speak their native language between each other without restriction. There is a perception that this has been created because the business doesn’t support diversity and that you have unfairly favoured an employee who is hypersensitive and has made a complaint that was unfair and unwarranted. You find out that the instruction you considered reasonable and entirely lawful has caused even more division between the staff.

Sometimes being ‘right’ and administering the law in a reasonable way still leaves you with dissatisfied staff, complaints and ongoing problems with the potential to escalate into expensive litigious claims or absenteeism, dysfunctional presenteeism, work cover claims, stress and anxiety leave, allegations of bullying and discrimination, an increasing need for formal performance management protocols, and perhaps a toxic workplace culture. All of these are very difficult to manage and can be highly expensive.

The problem is that just instructing staff to do something quite reasonable doesn’t necessarily mean that they will embed that into their behaviour, just because you said so. They may not necessarily ‘get it’. They will do it, at least superficially. But underneath, there are underlying unresolved complaints, thoughts, opinions, beliefs and judgements that will eventually leak out into damaging non-verbal and verbal communications. Maybe not all staff involved feel this way, but some will – often enough to cause a serious enough issue to contaminate the broader team.

Whenever there is conflict between staff about anything, an essential option to always consider is whether or not to give them a structured opportunity to sort the issues out between themselves in the first instance, before issuing definitive employment directives.  Understanding what the law requires is important and can be a benchmark against which to test any agreements or to refer to as guidelines if agreements can’t be reached. However, even more powerful is providing safe spaces for staff to reach these resolutions on their own.

It’s not only providing them with time and space to discuss the issues but also providing them with a trained and experienced workplace mediator / facilitator who is able to manage the potentially fractious conversation in a safe and constructive way. If you don’t have any specialised training and expertise in managing conflict, here are some of the most common risks that you expose yourself to:

  • Escalating the complaint (making it worse),
  • Becoming part of what the complaint is about (which can lead to lodging of external complaints such as with the Fair Work Commission),
  • Isolating one or a group of employees (who may feel you are unfairly ‘siding’ with one group or another),
  • Exposing yourself or others to psychological harm (even though it’s unintentional),
  • Complaint fatigue (issues not being resolved and requiring your ongoing involvement to the point of becoming exhausting).

The significant advantage of using a skilled workplace mediator to facilitate the conversation could well be having staff actually embrace and embed into their behaviour the self-regulated use of language taking into account genuine consideration of co-workers, instead of the potential resentment and negative discourse because of being compelled to comply with a perceived unfair even if lawful instruction.

Some of the most powerful moments that I have been involved in, is where a person is able to openly express and share what their experience has been and for the other to recognise and honestly share their own experience. It is in those moments of mutual recognition and acceptance that the communication pathways become unblocked – and then you can effect creative, real and lasting change.

[1]  The Equal Opportunity Tribunal in Western Australia ruled that the Perth Mint did not discriminate against two Thai workers by directing them to speak English and not their native language.

[2]  https://www.humanrights.gov.au/quick-guide/12060

Anna Faoagali
National Practice Manager
Emverio Workplace Solutions
Workplace Mediations, Workplace Investigations, External Whistleblowing and Complaints

Resources:

Case Precedent
Equal Opportunity Tribunal of Western Australia, in the case of The Western Australian Mint & Industrial Personnel Company Pty Ltd v Jinda Tuinaphiang and Siriphon Linda Schulze, 2002

Legislation
Australian Human Rights Commission, Racial Discrimination Act, 1975