EMPLOYMENT MEDIATION:
Employment mediation is also known as workplace mediation and this is a kind of mediation in which it manages the conflict which exists in their respective employment or workplace. The mediation acts as a bridge between individuals to resolve their dispute and also the issues can be openly discussed. In most situations, the dispute has occurred because the parties involved have differing opinions or a different understanding of the situation. Each party has interpreted the actions of another party differently, resulting in a misunderstanding or ill-feeling. Mediation allows each party to explain their perspective in a controlled manner, hopefully in a non-threatening, non-confrontational environment. It also allows each party to get an understanding of the other party’s perspective.[1]
There is no compulsion to reach an agreement. Mediation is all about opening the lines of communication in a controlled manner. It is not about who is right and who is wrong. It is not always between the parties. Sometimes there are a number of parties involved in the process. For mediation to be successful, all parties generally have to make concessions to change the way they act and treat other parties involved in the dispute.
There are certain advantages and disadvantages associated with employment mediation. The advantages like being an efficient and cost-effective way of dealing with employment problems. A skilled mediator will quickly identify the key issues in a case and establish what outcome both sides want to achieve. There are no timelines for mediation as it can be used alongside any stage of a process. It can be used in the workplace; for example, at the very outset of a grievance with a view to resolving problems informally and pragmatically. It can also be used before or during litigation.[2]
Employment tribunals or court proceedings can be time-consuming, expensive, and stressful, and mediation offers a pragmatic alternative. Sometimes, even if a case is not completely resolved by mediation, it can still be very effective in narrowing the issues and steering the parties towards settlement. Discussions that are conducted during mediation are not binding and the whole process is entirely confidential. The outcome will only be binding if it is agreed upon by both parties. The main downside of mediation is that there is no guarantee of a resolution. It can be seen as an expensive process if an outcome cannot be reached. It is therefore only worthwhile if both parties are prepared to compromise. Some people want to ‘have their day in court’ and feel a sense of injustice if the process is not seen through until the end.
VIRTUAL HEARINGS IN EMPLOYMENT MEDIATION:
Because of this pandemic, everything became virtual or online and everything got adapted to a new life which is completely online. Virtual mediation in employment is introduced to settle disputes online and there is no necessity for being present in that particular location the meetings which are held through video or teleconference and document submission is facilitated through a cloud-based infrastructure accessible through the internet. The mediator assists the parties to come to a mutually beneficial agreement that is acceptable to all parties. [3]
Accessibility
Before starting with virtual mediation, there are a number of questions that need to be answered like,
Are the parties willing to use an online dispute resolution (ODR) process to resolve the dispute? Do parties have proper video equipment? Are the audio and video understandable? Does each party have enough bandwidth or a proper Wi-Fi connection? It is necessary to consider all these aspects.
Competence
Ensure that you being the mediator are well versed with the technology. Initially using a new technology might be stressful, but parties should avoid having any preconceived notions. Conducting a trial run or dress rehearsal with the parties prior to the mediation to help them feel comfortable using the technology so that it does not interfere with their attempt to settle the matter during the mediation is a good option.
Confidentiality
The mediator must ensure that neither the audio nor video portion of the mediation is recorded and should obtain a written commitment from each party regarding the same. Further, the guidelines suggest that while sharing documents during the mediation, the share screen platform should be used as it ensures security. The guideline also suggests that once all the parties are “in the room”, the mediation should be locked so that there is no unauthorized access.
Neutrality
The mediation should begin as a joint session with all the parties in the same room. If during the mediation, a party’s video or audio connection disconnects, the mediator should wait until the party is connected again and then repeat whatever that party may have missed due to the disconnection. The mediator and parties should have an alternative of using the telephone to listen in. Zoom also provides telephone numbers for the conference so that a party can use the telephone to listen in instead of video. The mediator should ensure that the parties have these numbers handy if the need arises.
Security
The mediator should use a platform that is secure. The platform should have an end to end encryption. The mediator should ensure that the parties are not using any applications that share locations. Further, the mediator should also make sure that whatever videoconference technology is used, it does not “close down” after a specific interval of time. For example, Zoom closes out after 40 minutes so this could be problematic during a lengthy mediation.
CONSEQUENCES IN VIRTUAL HEARINGS IN EMPLOYMENT MEDIATION
At the outset, one obstacle to conducting virtual hearings was learning how to operate in a virtual world, such as how to sign on to a virtual platform, upload, and access documents, and move participants between “rooms.” Security measures were enhanced to provide access only to the designated participants. In contested hearings, protocols were developed to preclude real-time coaching of witnesses.[4] Finally, adoption was slow until it became obvious that virtual hearings were essential to resolve disputes. Like riding a bike, once you learn, you do not forget.
What drove the acceptance was the need. Courts were effectively closed for public hearings, and the convening of a jury was a rare event. The only way to address a legal dispute was virtual. Increasingly, legal professionals learned that the work could get done in a more efficient manner. For example, travel ceased to be an issue, which reduced costs and facilitated scheduling. Documents could be sent electronically to anyone at any time. Witnesses no longer had to sit and wait to be called; a simple text message could alert them when to sign on. Breakout rooms allowed parties and counsel to caucus in their own cyber room. Given that this process was not business as usual, lawyers learned to cooperate in scheduling and related aspects of a hearing.[5]
However, there are lingering limitations. In mediation, personal contact can be critical in the final stages of negotiation. The impromptu hallway conversations do not exist. Participants can simply sign off in frustration, and there is no opportunity to stop them at the elevator door. Distractions at participants’ locations can divert their attention, and participants are no longer sequestered in a single room mulling over the issues.
In-person contested hearings make it easier for the arbitrator to manage all the participants. Everything that is before a witness can be seen. The interactions between counsel and client are observable, which may not be the case in a virtual hearing. As a consequence, there is a perception that assessing credibility is enhanced by in-person proceedings. An article by Judge Wayne Brazil, “Credibility Concerns about Virtual Arbitration Are Unfounded,” demonstrates that is not the case.
There are benefits of in-person proceedings, but I believe they are marginal in the overwhelming number of matters. The concerns about credibility or presenting evidence in a virtual hearing have not been borne out. The efficiencies of virtual hearings have driven their acceptance and continued use.
CONCLUSION:
Given reported skepticism and lack of online experience, mediator attitudes about their experiences online are remarkably favorable according to the survey results. About of mediators describe their experiences online as either positive or highly positive. About describe their experience as neutral. By contrast, describe their online experience as negative. A significant number of mediators who describe their experience as “highly positive” report that they had never used online mediation before the pandemic.
Perhaps unsurprisingly, most mediators identify technical problems as the main disadvantage of mediating online. Some report environmental distractions including interruptions while mediating from their homes or offices. A significant number also report difficulty building rapport online as well as a general lack of party engagement in the online mediation process.
Fortunately, technological limitations are not an indelible feature of online mediation as functionality, access, and hardware improve with time. Mediators can avoid some technical problems by advising participants about good online practices and by meeting participants before mediations to test connections and provide feedback about the chosen joining spaces. Research has also identified various ways that online communication is different than communication in person in terms of body language, voice, eye contact, and perceptions about silence. Other research suggests that viewing oneself when speaking and having too many communications in the same space may have negative effects on the psychology of speakers.
[1] Amar Dubey, Work Place Mediation, Indian Law Portal (May 25. 2020), https://indianlawportal.co.in/workplace mediation/#:~:text=Workplace%20Mediation%20is%20essentially%20a,the%20parties%20in%20the%20mediation. (last visited Jan 18. 2022).
[2] Adya Singh, Workplace Mediation, VIA Mediation & Arbitration Centre, https://viamediationcentre.org/readnews/OTI0/WORKPLACE-MEDIATION (Last visited Jan 18. 2022).
[3] Hon. Patrick J. Mahoney (Ret), Virtual hearings and Mediations are here to stay, JAMS ADR Insights, https://www.jamsadr.com/blog/2021/virtual-hearings-and-mediations-are-here-to-stay (Last visited 18 Jan. 2022).
[4] James Claxton, Mediators Like Online Mediation and other verifiable facts, Kluwer Mediation Blog, http://mediationblog.kluwerarbitration.com/2021/05/17/mediators-like-online-mediation-and-other-verifiable-facts/ (Last visited Jan 18. 2022).
[5] Ankona, Online Dispute Resolution, Via Mediation & Arbitration Centre, https://viamediationcentre.org/readnews/OTAz/Online-Dispute-Resolution-in-India (Last Visited Jan 18. 2022).