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Bringing Mediation into the Workplace By Jason M Tom Esq and Connie Chu What is mediation? And how can this hot, new process be embraced to help resolve disputes in the workplace?

In addition to providing the basic statutory framework for the conduct and implementation of mediations, this Mediation Ordinance confirms the prominence of mediation as the preferred alternate

What is mediation? Mediation is a voluntary process to resolve disputes through a neutral third person.

1 Bringing Mediation into the Workplace By Jason M Tom Esq and Connie Chu What is mediation? And how can this hot, new process be embraced to help resolve disputes in the workplace? These are the questions that every HR department in Hong Kong should now be asking. On 15 June 2012, the Legislative Council passed the Mediation Ordinance. In addition to providing the basic statutory framework for the conduct and implementation of mediations, this Mediation Ordinance confirms the prominence of mediation as the preferred alternate dispute resolution process in Hong Kong. The use of mediation to resolve disputes should now be the first process that pops into the head of every HR department when dealing with labour disputes. What is mediation? Mediation is a voluntary process to resolve disputes through a neutral third person. The parties determination and willingness to utilise this process are the key elements to a successful mediation, explains Dr Raymond HM Leung, Founding President and Governor of the Hong Kong Mediation Centre. Voluntary process means the parties have the choice of agreeing to mediate, remaining in a mediation process and/or leaving the process whenever either or both of them deem(s) appropriate. A neutral third party implies that the mediator s role is impartial. He/she has to facilitate the parties to move towards a feasible and/or desirable outcome without offering them any advice. Dr Leung s definition applies to employment mediation as well as many other types of mediation. More importantly, the Court has given its stamp of approval to look towards mediation as a suitable and preferred alternate dispute resolution process. In iriver Hong Kong Ltd v Thakral Corp (HK) Ltd [2008] 4 HKLRD 1000¹, the Court of Appeal stated that the legal profession must acknowledge mediation s value and should routinely consider with their clients whether their disputes are suitable for mediation. A skilled mediator will be able to provide solutions which are beyond the powers of lawyers and the courts to provide. Even in cases where mediation did not result in an immediate settlement, by narrowing the parties differences, it could lead to a full setlement at a later stage in the matter. ¹ In this case, the Court of Appeal regretted that the parties had not explored mediation when the damages were just over $1 million while the legal cost incurred was $4.7 million. 42 HUMAN RESOURCES September 2012

2 What is the purpose of workplace mediation? The goal of workplace mediation is to improve understandings between the parties and reduce the potential damage such disputes can cause to the harmony of the workplace, says Dr Leung. The mediation process also aims to manage and hopefully maintain a good relationship between employers and employees. It offers a credible alternative for them to jointly settle a dispute and agree on the means and methods for further collaboration. Mediation is a pre-requisite before a complaint can even be brought before the Labour Tribunal HR professionals must be aware that mediation is a pre-requisite and mandatory process before a complaint can even be brought before the Labour Tribunal, according to Dr Leung. HR professionals should look first towards a conciliation method such as mediation as this process can stem the further deterioration of the relationship between the employer and employee and hopefully resolve the dispute at hand, he says. How does the mediation process work? Generally, the process begins with two individual preliminary meetings (which can be face to face, online, on the phone, etc) between each party and the mediator. This step allows the mediator to obtain details of the situation from both sides in order to prepare for the next steps. The mediator listens to both sides of the dispute, asks questions to help solve the issue, reviews all the documents relating to the disagreement and explores other possible solutions. Before a joint session, parties are reminded of ground rules of the particular mediation, including: confidentiality and privilege and respect for the other party. The parties are also asked to confirm that they indeed have the authority to settle the case. During the joint session, the parties are encouraged to share their perspectives and identify and explore into the facts and options of a list of issues, ie an agenda relevant to their disputes with the mediator s assistance (usually in the form of open guiding questions). Private sessions, also known as caucuses, usually will then follow. Parties in the caucuses can disclose any information to the mediator confidentially, which they may not have been comfortable revealing in the previous session. They can also explore further and discuss other possible outcomes and solutions. Information will not be disclosed to the other side unless with the consent of the party. After the caucuses, the parties will have other joint sessions as needed during which they can hopefully compromise with their own suggested solutions to the dispute and ultimately reach a settlement. As Dr Leung emphasises, this facilitative mediation model is applicable and frequently adopted in mediation on labour disputes. Throughout the entire process, the mediator s impartiality, control of the process, summarising and reframing skills are crucial for building rapport and trust with the parties, which can cause the mediation process to run more smoothly especially in highconflict disputes. What are the benefits of mediation compared to litigation and arbitration? Mediation is [only] as good as the parties [themselves], says David Fong, Director of The Joint Mediation Helpline Office, Ltd. Unlike judges and arbitrators, mediators do not make decisions for the parties. Parties have the freedom to decide for themselves and thus are their own judges. Mediation is also less formal than litigation and arbitration. It is generally more efficient as it can take just a little as a few hours to the longest time frame being a few days, Dr Leung underlines. It is also less costly, as the cost of mediation is in most cases less than 10% of that of litigation, according to Dr Leung. Yet, the percentage can vary as mediation costs are proportional to the experience and reputation of the mediator. Also, costs may increase if legal advisors come into the picture. Dr Leung also mentions that mediation is the only process that enables a win-win solution. This is to say, parties are more likely to restore a harmonious relationship between employers and employees as a result of mediation than adversarial processes. In what situations can the mediation process be applied to the work environment? Mediation can work in almost any situation, according to Dr Leung. This includes but is not limited to: contractual disputes, holiday calculation, employee injuries and unpaid wages. HUMAN RESOURCES September

3 In what type of disputes may mediation not be applicable? Mediation is unsuitable where criminal acts are involved. However, minor offences can be mediated if the victim is willing to mediate, explains Dr Leung. The process is also unsuitable when a party is substantially weaker or feels intimidated by the other in one way or another. Such situations include: an employer forcing an employee to mediate without prior agreement between them; a party threatening violence against the other and where a party feels overly uncomfortable in the presence of the other party. In addition, when the mediator is unlikely to remain impartial due to his/her personal or corporate association with either party taking part in the mediation (thus creating a conflict of interest), the situation is deemed unsuitable. Is employment mediation the hot, new process that most HR departments will implement in Hong Kong within the next few years? Yes, Dr Leung remarks, Not only in the HR field but in every walks of life. Both the Department of Justice and the Judiciary fully support mediation. The Civil Justice Reform in Hong Kong embraces mediation and encourages parties to first attempt to amicably settle and resolve their differences before proceeding to full fledge litigation. The goal is to encourage all forms of alternate dispute resolution as a means of avoiding the high costs that litigation may incur. Mediation has been growing in popularity in Hong Kong in recent years due to its high success rate (over 70%). As the mediation bill was finally passed in June 2012, it seems natural that more and more individuals and organisations will promote it in the near future. Furthermore, Practice Direction 31 on Mediation as issued by the Hong Kong Judiciary distinctly states that all disputing parties must now give reasons if they proceed to litigation without first attempting to mediate. This Practice Direction gives more incentives to parties to understand that in most cases, there may be more reasons and benefits to attempt to mediate first before initiating the costly and sometimes damaging effects of litigation. 44 HUMAN RESOURCES September 2012

4 iriver Hong Kong Ltd v Thakral Corp (HK) Ltd [2008] 4 HKLRD 1000¹ ¹ 100 $470 HUMAN RESOURCES September

5 46 HUMAN RESOURCES September % (70%)

國家圖書館典藏電子全文

國家圖書館典藏電子全文 i ii Abstract The most important task in human resource management is to encourage and help employees to develop their potential so that they can fully contribute to the organization s goals. The main