What is mediation?
Mediation is defined by Acas as “a completely voluntary and confidential form of resolving workplace disputes between people”. It involves an independent third party considering an employment problem and working with those concerned to try and seek an amicable resolution for everyone. Both Acas and tribunals actively encourage parties to engage in mediation. A methodical approach to mediation may help resolve conflicts, improve communication, restore trust and allow the parties to move forward.
When is workplace mediation appropriate?
Mediation can be used to resolve a variety of workplace disputes. It can be helpful in cases where there is a dispute between employees who are both willing to resolve their differences. It can also be used in the early stages of employee grievances or potential disciplinaries to help promote resolutions without the need for formal action or as a formal follow-up to formal proceedings. Mediation can be particularly helpful where the employment relationship is continuing, as the parties will want to ensure there is a good working relationship moving forward.
There is no set form to mediation and mediators can be flexible as to how the parties approach it. They can sit around a table and discuss the issues in an open forum, using the mediator to chair, or the mediator can pass back and forth between the parties and discuss their issues separately.
Qualified mediators will often think of practical and innovative solutions to complex problems, and suggest outcomes appropriate for the particular individuals and/or business involved. Mediation allows much more flexibility than the courts have when considering remedies.
When is it not appropriate?
There are, of course, circumstances when mediation is not an appropriate response to dealing with a workplace issue. A situation involving serious misconduct, for example, would need to be dealt with through a formal process. Nevertheless, mediation can still follow a formal process to help resolve ongoing issues. Remember that mediation is a voluntary process and everyone has to be willing to enter in to it.
A commercial view also needs to be taken, as a business should only really consider incurring the cost of appointing a meditator if all parties are willing to engage in the process.
Mediation can be 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. 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 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.
Claire Brook is an employment law partner at Aaron & Partners