Practical solutions and improvement proposals
I would like to start this article by warning readers about a basic issue when it comes to understanding the content offered in it. It is about avoiding the natural mistake that we all make when we are offered practical solutions, understanding it as a shortcut that will take us to the final destination without any effort or wear and tear, that is, like the list of magical solutions that serve as much as syrup to cure cough. as a lotion so that our hair grows with unusual vigor.
The immediacy of responses that we obtain thanks to digital hyper connectivity and the speed with which we want to free ourselves from unwanted situations in our lives should not be our guide in the actions we carry out, nor in the adoption of the decisions we make.
Labor conflicts have a unique character and are determined by the personalities of those who participate in them, the origins of their disagreements, as well as the situations they have to address and the visible or hidden interests they seek to satisfy.
However, without forgetting the importance of these factors, I am going to offer you some practices that experience has shown me to be useful for the occasion and a set of proposals that would help improve labor mediation.
1.- Manage silence.
Silence is often an uncomfortable companion. However, effective labor mediators know their true value. Well-managed silence allows the parties to absorb what they are hearing, makes it easier to deactivate their prejudices, and gives them the necessary pause to seek a perspective away from the nearby things that overwhelm them.
It makes them aware of the need to take responsibility for the conflict and calls them to find the appropriate solution, although often it does not coincide with the desired solution that they are reluctant to abandon.
So, take advantage of the silence to show them what the noise has not allowed them to observe in the heat of battle. After all, silence is an act of will that does not make them weaker, rather, how often the weakness comes from their own words.
Make them question the “he who remains silent grants” and understand that the reply and the counter-reply are not the method, but only how the conflict has been raised.
On many occasions, silence needs time to bear fruit, so it will be interesting to agree to a postponement of mediation to mature the acceptable solution and clarify your interests and priorities. Do not forget that the employment relationship is a successive relationship in which interests, rights, duties and powers come together that are susceptible to variation.
Use up the debate time, but don't exhaust the interlocutors. Don't rush, don't burn bridges. Don't be one of those who listen to themselves when they speak.
I remember a mediation in which a group of workers requested to review some agreements that had been stopped by new management. The company did not want to listen to them in the mediation and left satisfied with their full approach to the situation.
The workers waited to raise the conflict again at a time when the company needed them to cope with the workload caused by a peak in demand from its clients. The company had to give in to all its claims due to the risk of customers leaving for the competition. There is no one more blind than he who does not want to see.
2.- Overcome obstacles through skills, tools and attitudes.
In labor conflicts, the mediation team must strive to show empathy and listening skills using responsibility, impartiality and creativity. To approach positions your most valuable weapons will be something as basic as patience and common sense.
I have attended mediations in which, after the verbalization of the approaches by each of the parties, it was already ended without agreement. Serious mistake. In order for mediation to bear fruit, it is necessary to both show confidence and generate optimism; and that is impossible in a hurry or in an arrogant way.
The first group of obstacles to overcome by the mediation team is the insecurity of the parties, their prejudices about the conflict and the false truths that surround them. I have never managed to advance in a mediation until I have overcome this triple jump. Even on many occasions, despite ending the mediation without an agreement, the parties have been able to understand that a very high percentage of their problems had found solutions.
Perhaps because they had abandoned their cryptic language, perhaps because their advisors had ceased to have preponderance in directing the conflict, or perhaps because erroneous perceptions had been clarified.
There are no statistics on what has happened in labor disputes that have not reached an agreement in mediation, but I am firmly convinced that not all of them end up in Court.
Therefore, redirecting them to viable solutions or pacifying the situation by adopting commitments aimed at healing the wounds in the relationship between the parties is more common than it seems.
If the mediation progresses, the second group of obstacles encountered is aimed at investigating and allowing the parties to get closer. To do this, we must make sure that we have understood them and reflect it delicately, without judgments or opinions. Do not interrupt, express with gestures the emotion that the interlocutor is expressing, reflect on the words they are using and ask them about the ones we do not understand.
We must realize that we do not use words without reason and that mediation is a communication process, with the mediator being responsible for the development of communication.
All this active listening exercise does not mean chattering, we must give our voice the appropriate intensity, speed and volume. And we cannot forget about non-verbal communication (breathing, distance, postures). We make physical changes based on emotional changes. We have to play all the keys to see which ones are out of tune.
3. Towards a culture and a legal framework that allows labor mediation to advance.
Labor mediation is not, by any means, what the administrative conciliations that are held before the different delegations of the territorial labor services are. For example, in cases of dismissal, the actions carried out only concern the monetization of the end of the employment relationship. That is, what is the financial amount that I am willing to give or receive in order not to hold a trial.
We should not confuse one thing with another. Labor mediation requires that the employment relationship be alive and proposes the manifestation of a discrepancy between the subjects of the employment relationship with respect to one or more of the working conditions that make it up, with the desire that the employment relationship overcome the difficulties that arise. endures and endures over time.
Therefore, beyond tactics and strategies, authentic labor mediation must be developed under the following principles:
- Equality between the parties
- Hearing of both parties
- Independence, impartiality and professionalism of mediators.
- Contradiction between the positions of the parties.
- Orality of the procedure (initiation document and completion record).
This capital issue has been understood and developed by unions and business associations in our country since 1992, establishing bodies for the extrajudicial resolution of labor disputes in all the CC. AA and state level.
Acting primarily in collective conflicts and demonstrating daily its ability to understand and resolve disputes through mediation and, to a lesser extent, arbitration.
Unfortunately, the space of individual labor conflicts lives with its back turned to labor mediation, in the terms discussed here, subject to the abuse of excessive and exasperating judicialization for companies and working people, who see access to this adequate method of dispute limited on a daily basis. conflict resolution.
It is necessary, in my opinion, to eliminate mandatory administrative conciliation in labor processes, to educate social order judges so that they dare to refer matters to mediation, as occurs in the civil order. Strengthen autonomous bodies for resolving labor conflicts and establish an adequate regulatory framework for mediation that allows creating spaces for dialogue and resolution of labor conflicts within the company (intra-organizational mediation).
All this with the purpose of allowing the true protagonists of labor relations to demonstrate their maturity and responsibility. I am concerned that there are so many voices calling for reform of labor relations in so many aspects and almost none in this matter.
That's why I thank EIM the opportunity you give me with this opinion article, which I hope will contribute to promoting authentic labor mediation, unjustly forgotten and sometimes confused with other practices that have nothing to do with its method and purpose.
