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Addressing complaints through
mediation and conciliation
National Investigations Symposium
5 November 2014
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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?
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How do we make sense of our
terms?
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Investigating complaints through mediation and
conciliation
X
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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
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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
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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
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How do you decide if mediation is
appropriate?
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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.
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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.
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Deciding which process
Type of matter
Seriousness
Desired outcome
People involved
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How does mediation work?
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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
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What are the benefits of
mediation?
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Benefits
People involved have greater control over proceedings
and outcome
Containment - fewer people involved – more confidential
Confidential
Voluntary
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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
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Can investigation and mediation
work together?
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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
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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
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Fiona Hollier
Chief Executive Officer
LEADR
+61 2 9743 1983