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Employment Today, HR Solutions - Thomson Reuters

Employment Today Magazine

Mediation: five critical moments in time

Paul Hutcheson explores five pivotal moments that can change the course of a mediation, and outlines techniques that will facilitate a successful outcome.

There are times in mediations, negotiations and crucial conversations when, as participants, we typically find ourselves confronted with a choice. This may be a simple binary choice as to whether to respond to an inflammatory comment or just ignore it. On the other hand, there may be a raft of possible options.

These moments in time are often overlooked or misinterpreted, even by experienced negotiators. Yet the five potentially pivotal occasions outlined below directly link to ultimate success or failure. And while this discussion primarily focuses on mediation, the approaches and techniques referred to are equally applicable to general workplace negotiations and all crucial conversations.


Obviously, mediation will be compelled if an issue is likely to be referred to the Employment Relations Authority. But willing participants are the best contributors, so how can we go about more effectively encouraging others to enter the process—whether it be mediation, negotiation or a serious conversation?

There are numerous points worthy of highlighting to the reluctant person about these processes. One of these, for example, is the low risk nature of mediation. It can be explained that any ensuing agreement is voluntary, and there is the option of seeking legal advice before any formalising of an agreement. Mediations and negotiations do not change peoples’ legal rights unless they consciously decide otherwise. So why not at least have a focused discussion about the concerns?

Management and employers will sometimes say that agreeing to engage on an issue reveals weakness. On the contrary. From my experience of closely observing mediations, I firmly believe a preparedness to respond and front an issue signals confidence and strength. A practical plus for attending a mediation—especially when little is known about the others’ position—is the opportunity of being able to “view before committing”. If ever a situation is later scrutinised by a third party, a positive inference is likely to be drawn from someone’s attempts to convene a serious discussion which had the stated intention of finding a solution. Finally, it can be pointed out that the worst aspect of an unsuccessful mediation, negotiation or serious conversation is just that it has been a waste of time.

The question as to whether an allegation ought to be mediated or investigated is sometimes a dilemma for HR. This arises typically in relation to bullying and harassment issues. This topic will be the subject of a workshop session at the Conflict Resolution Conference to be held in Wellington 1-2 November 2017, when experienced employment investigator Andrew Scott-Howman and I will examine the pros and cons of mediating and investigating.

A reality of life is our hard-wired tendency to avoid conflict. This manifests itself most obviously within the workplace through avoidance of all kinds of necessary conversations. During mediations and investigations, I routinely pose the question: “With this situation, in hindsight what could have been done differently?” Invariably the reply is that the issues ought to have been raised and discussed before things grew out of control.

The reasons why people so consistently avoid issues are complex. However, no doubt one contributor is our lack of confidence through not knowing how to go about engaging in a truly productive conversation. Hopefully many of the points in this article may help in some way to fill this void.


Emotions are inevitably part of mediations, negotiations and difficult conversations. If emotions are not immediately apparent, they will certainly appear in some guise sooner or later. While there may well be better times than others for emotions to be expressed, from a strategic perspective of reaching an enduring outcome, it’s invariably better that emotions are expressed rather than suppressed.

Skilled negotiating strategists also understand that it’s good to plan for and in some ways encourage the expression of emotion prior to focusing totally on substance. In a day-long mediation, I have learned to expect that while a range of issues will be covered, the morning predominantly will work with the past, parties’ perspectives and many of the related reactions and emotions. The afternoon will, on the other hand, primarily focus on the substantive issues, options and solutions.

Many advocates put considerable energy into preparing for the substantive discussions. They earnestly believe this is the pathway to successful negotiated outcomes. However, from my 25 years of mediating I have a different opinion. More than any other issue, what ultimately determines the success or otherwise of many processes is the ability of those involved to cope with both their own and others’ emotions. Some suggestions as to how to react to others’ emotions include:

  • • 
    Rather than immediately responding to their issue, just listen and try to locate the possible stimulus for the feeling. For instance, someone’s anger over not being paid an allowance may be not so much about the immediate incident, but rooted more in a history of not being recognised for exemplary efforts.
  • • 
    Always avoid debating someone’s emotions and focus instead on listening, asking clarifying questions such as: “Tell me more” and summarising what they are saying (without inserting your interpretation).
  • • 
    An important technique is to be able to identify and acknowledge the essence of what they are feeling, for example, “So you feel disappointed and let down over this incident”. Some genuine acknowledgement can be really meaningful for the speaker and it’s important for the listener to realise that acknowledging does not necessarily mean you are agreeing with them.

On most occasions, these types of approaches will help people express their emotions and thus the discussion will move through on to other phases. However, sometimes emotions can become out of control, at which point a call may need to be made not to accept the unacceptable.


Sometimes in the midst of a mediation or negotiation you may have a strong sense that the other side is lying or deceiving. Understandable reactions could include surprise, anger and disappointment, but the practical task is what to do about it? While natural reactions could include retaliating in kind, walking away or calling them out, Deepak Malhotra, in his book  Negotiating Genius, advises another course.

Try pausing to see what they do next and remain calm, treating it like any other negotiation problem. Despite the strong emotional reactions that you may be experiencing, double check as to whether it really was an intentional misstatement designed to mislead you. Challenging people directly never results in an admission of lying; however, you could possibly extract some negotiating advantage by intimating that you are fully aware of their tactic, but you allow them at the same time to save face.

Conceivably, this might culminate in you saying something along the lines, “I have been able to check out your earlier assertion and two independent people have confirmed that it never occurred. I am sure you were honestly mistaken as I know you would never have intentionally wanted to mislead me. I am quite prepared to forget this incident and, in light of these circumstances, perhaps you might now like to pause and come back to us with a new proposal?”


When someone launches into a monologue that may include unfair accusations about you, the last thing you will wish to do is to listen quietly. The reality about listening is that it’s something that is extraordinarily difficult to do, especially when someone is criticising you. However, if you can listen in such difficult circumstances, there is no better way to respond to an upset person.

Other benefits of good listening are that some previous obscure or unknown fact may well emerge. If the speaker has a sense of being genuinely listened to, this can be a significant factor in contributing to that person “letting go of the past”. Finally, it’s worth reflecting on the question: when did you last co-operate with someone who was constantly interrupting and not paying you any attention?

Some suggestions for good practical listening include displaying respectful body language and tone of voice, using the person’s first name and using their own words to summarise back their key points.

Really good listening can mean “money” and in many mediations and negotiations I have witnessed one party’s effective listening dramatically reduce the other side’s excessive monetary claims to something quite reasonable.

Central to the negotiating process is the principle that in order “to get we need to give”. Sometimes in difficult negotiations and conversations a reality will be that we have nothing of a tangible form to give. In such circumstances, I have seen genuine and effective listening make a difference and be gratefully received as part of the negotiation process.


Sometimes in a mediation where an impasse has been reached I have gone to speak to one of the parties and asked if we can talk about how they might help to solve the other side’s difficulty in accepting an offer. I have been met with understandable incredulity: “Why do we need to talk about that! It’s their problem to solve!”

These reactions are predictable. However, as James Sebenius in  Six Habits of Merely Successful Negotiators eloquently points out, really skilled and successful negotiators are always mindful of this dilemma and they work assiduously and precisely on not neglecting the other side’s problems.

From my observations, rather than this being some misguided altruism, its actually about being “selfish”. In other words, it’s in our best interests to help solve the other’s problems. Within the employment context, this issue often arises when an employer has to give more than what might have been expected or an employee accepts less than what was expected.

Often, solving these difficulties involves reconfiguring packages in order to make it look acceptable to others who were not attending the face-to-face negotiation. Take, for example, a situation where an employee’s behaviour, in the view of the employer, is sufficiently serious to warrant dismissal. An all-day mediation thoroughly traverses all aspects of the issue and the employer’s representatives, having witnessed and participated in the day’s intense discussions, are now of a mind that something less than outright dismissal is acceptable. However, the reality is that they will struggle to convince the real decision maker (who did not attend the mediation) of this new course.

In order to solve the employer’s problem (which is also very much the employee’s problem as well) both parties had to work together. The result was an agreed list of sanctions, and while the ultimate one of dismissal was avoided, there were certainly other tangible outcomes agreed to.

PAUL HUTCHESON is a Wellington-based mediator and facilitator. Visit:

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