Mediation

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David qualified as a mediator in 2007 and has a particular interest in workplace mediation.  This comes from being involved in contentious employment law for many years as a solicitor.  

Workplace mediation is not a soft or easy option. In a grievance situation, for example, a complaint is made and the process handed over the the decision maker, who is bound to investigate and impose a decision on the parties.

Workplace mediation requires a willingness on the part of the parties to compromise and to help find a solution to a problem, rather than put it in the hands of someone else, like a grievance chair or employment judge.

Please see detailed guidance on workplace mediation below.

As well as mediation between employees (or employer and employee), we can assist with all types of mediation relating to the working relationship including:

• LLP members
• Partners
• Self-employed workers 
• Employment Tribunal claims

Mediation is a voluntary process used to try and resolve a dispute or difficult situation at work. Acas describe mediation as a “way to mend relationships when there is a disagreement at work.” 

Mediation is informal and very flexible. There is no template or rules the mediator and the parties must follow (such as a grievance procedure or the Acas Code of Practice on Discipline and Grievance). The process can be adapted to suit the situation.

Mediation can be used at any stage of a dispute or disagreement. In some cases, there may be an existing formal grievance or claim. In other cases, a dispute may have arisen but there is no formal process already being followed.

Mediation is very different to a formal complaint, whether that complaint is pursued through an internal grievance or through an employment tribunal. When a person raises a grievance, the process requires an outcome which will be a decision one way or the other. The grievance chair is bound to make a decision and issue that decision in writing to the person who has raised the grievance. This written outcome may then lead to a further procedure, such as:

• an appeal if the complainant is unhappy with the decision or part of it.
• disciplinary proceedings in it is decided that misconduct took place. 

Sometimes there is a counter-grievance.

In a workplace mediation, the mediator is a facilitator and not a decision maker. The mediator will not impose any decision on the parties but, instead, will assist them to reach an acceptable outcome.

It’s a similar situation with an employment tribunal case. The employment judge will weigh up the evidence, consider the law, and make a decision. The parties are out of control and, instead, are relying on the employment judge to decide the claim one way or the other.

Mediation is a much more flexible and speedy process compared to a formal grievance or an employment tribunal claim. The parties also have a lot more control in that they can pause or stop a mediation at any time. 

Generally, a mediation can be arranged and conducted quickly. The cost of a mediation is also a lot lower than an adversarial process. 

Mediation works well where the parties:

• Attend voluntarily
• Are willing to compromise
• Keep an open mind
• Understand the disadvantages of having a decision imposed on them.

Mediation does not work if one or more of the parties do not approach the mediation with an open mind and a genuine desire to resolve the issues. 

Mediation may not be suitable in a case where a decision or adjudication is required such as in a disciplinary process.

The mediator will act as a facilitator and help the parties to reach an agreement. The mediator will not:

• Advise on the law or advise on a course of conduct.
• Say who’s right or wrong.
• Make a decision or issue an outcome.

The mediator may:

• Give a view on what could happen if agreement is not reached.
• Share his experience of employment law or similar situations to help someone see where the dispute might end up.
• Play devil’s advocate
• Suggest an alternative way of proceeding if the agreed process is not.

There are different models of mediation and I have said that the mediator will act as a facilitator. This kind of mediation is normally most suitable and appropriate for the workplace mediations I conduct. However, other models and approaches can be discussed and considered in appropriate circumstances.

  The process is confidential and not binding on any party. However:

• The mediator may be authorised by the parties to report back to the employer that agreement was or wasn’t reached.
• The parties may agree that certain things can be shared.
• The outcome may be shared with the employer.

This will all be agreed at the outset and during the procedure, as necessary.

Yes, there may be some details which a party wants to tell the mediator but are not to be repeated by the mediator or shared with any person. In our case, we will delete confidential information after the mediation to ensure it cannot be disclosed through any other process or request.

This depends on the a few factors including:

• The issues behind the mediation.
• The number of people involved.
• The time available or allocated.
• The preferences of the parties.

Often, the best process is to meet the parties individually first. This can be in person or by video meeting. We have a confidential discussion about the issues and hat each person wants to achieve or feels is achievable.

If everyone agrees, we will often have a joint session. However, we can move between individual and joint meetings as necessary or appropriate. 

In some cases, the employer may join part of the meeting. The employer needs to be on board with the outcome, for example, where duties or reporting lines may be varied.

A great thing about mediation is that it ends when and how you want it to. It is not compulsory so a person may decide to not complete it if they wish (although this is rare).We generally like to end a mediation with a mediation outcome agreement. We can help the parties to prepare this.