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Mediation in the Workplace

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With so many distinct personalities in the workplace, it is only natural that, from time-to-time, conflicts arise. If left unresolved, ill-feeling can escalate, potentially leading to more serious grievance and disciplinary matters. Mediation in the workplace is a way to intervene and resolve disputes at work by guiding parties towards mutually beneficial solutions.

Mediation in the workplace is a voluntary process that should be led by an impartial third party, meaning they are not involved in the matter and do not take sides. It is often described as an “informal” process because it is less formal than disciplinary or grievance procedures. Nevertheless, to be effective, mediation should still follow a structured approach.

Mediation can be used at any stage of a dispute or disagreement and attempts to provide a faster solution to workplace conflict. It also looks beyond the issues to address any underlying causes to find long-term solutions.

 

The benefits of mediation in the workplace

It really goes without saying, but workplace disputes are expensive and time-consuming, and can be detrimental to staff morale and working relationships. This may, in turn, lead to higher levels of absenteeism and employee turnover.

Research shows that both employees and employers prefer mediation to more formal grievances, and there is evidence suggesting those who use it are generally more satisfied with the outcome.

Because mediation in the workplace enables employers to respond quicker to conflict as it arises and its confidentiality encourages parties to be open and honest, it really gets to the heart of the problem. And improves the party’s chances of maintaining a productive relationship moving forward.

 

What outcomes can you expect from mediation in the workplace?

The best scenario is for all parties to reach a mutually acceptable and agreed solution, which allows a good working relationship to be restored. During the process, all parties are given the opportunity to air their grievances and be heard. However, mediation is only as good as the party’s willingness to reach a solution. It is therefore only worthwhile if both parties are willing to compromise.

 

When mediation in the workplace is not appropriate

There may be certain situations when mediation is not appropriate. Circumstances surrounding serious misconduct, for example, would need to be dealt with in a more formal process. Although mediation can still follow a formal process to help resolve ongoing issues between colleagues. However, you should remember that mediation is a voluntary process and as such, everyone must be willing to enter into it freely and without pressure.

 

Using mediation in the workplace

For employers who are considering introducing mediation into the workplace, they should think about what they want to achieve, whether this is a reduction in grievances and conflict or an improvement in workplace culture.

There are two ways employers typically introduce mediation. They can either use an external mediator to come into the workplace or set up their own internal mediation scheme by training employees to act as mediators.

The option you choose is likely to depend on the size of your organisation. For example, larger companies may decide to implement their own mediation scheme, whereas a smaller business might use an external mediator. There is always a third option – a combination of the two.

 

Using an external mediator

If you decide to use an external mediator, it is a good idea to appoint someone to oversee the mediation arrangements. Any costs of external mediation should also be included within your organisation’s budget. Using an external mediator may be a good option for smaller businesses because it can be less expensive than setting up an in-house mediation scheme. It can also be difficult in smaller companies to be impartial because the parties involved are more likely to be known to the mediator. Additionally, it may also be complicated to arrange time off for mediation meetings for team members at the same time.

Larger organisations may also decide to use external mediators in some situations, even if they have implemented their own mediation scheme. It might be appropriate to use external mediators where there is a conflict of interest between the mediator and the parties; an internal mediator is not available; those involved in the conflict are senior managers, or it involves a particularly sensitive situation.

There are many mediation providers around, including those provided by ACAS. Once you have found a provider who you may appoint as an external mediator, you should discuss the contract, costs involved, and timings with them before proceeding.

 

Internal mediation

If you are considering implementing your own mediation scheme, you could initially try a pilot scheme to see if it could work within your organisation. If successful, you could expand the scheme.

It is a sensible idea to appoint an individual or team specifically responsible for overseeing mediation arrangements. When selecting employees to act as mediators, you can either ask employees to volunteer or ask managers to nominate employees. If employees come forward of their own volition, you should set minimum standards which they should meet. For example, you might want them to have an understanding of confliction management, which is probably likely to narrow the pool from which you can select potential mediators. You should try to select a diverse range of employees to act as mediators, which will help you to match mediators to parties with greater ease and ensure mediators are impartial.

 

Training employees to act as mediators

Employees who act as mediators must be trained in mediation techniques. They should also understand their role and how it fits in with your organisation’s procedures and policies. Their contracts of employment may need to be amended to reflect the changes and their mediation duties included within their job description. You should also ensure you give the employee sufficient time off from their general role to conduct mediations and deal with any follow-up work, such as writing up notes, reports, and agreements.

Including mediation in the workplace within your policies
There are many ways in which mediation can be included within your procedures and policies, such as: writing it into your employee contracts, including it within your harassment and bullying policies, or as part of grievance or dispute resolution procedures.

 

Best practice advice for workplace mediation

Establish the ground rules

Each person must be met with separately with the mediator outlining what the employee can expect from the process. They should ensure both parties are willing to engage in the process. Mediation rarely works when it is imposed.

Some ground rules should be set down for the next stage of the process. These may include asking the parties to come prepared with some ideas or solutions, listening with an open mind, and to avoid interrupting each other. It is important for the mediator to build trust with both parties, and ensure they feel safe enough to air their thoughts truthfully and without judgment.

 

Have a full and frank discussion with each party separately

Meeting parties separately allows them to feel confident in sharing their side of the story openly and honestly. The mediator should try to use active listening and open questions to get to the root cause of the problem, and paraphrase what the party tells them to show they fully understand their point of view.

Be prepared to encounter a lot of powerful feelings, from fear and distress to anger, and even those who are vengeful. Avoid shutting these feelings down as this may be the first opportunity they have had to express the impact of the conflict.

The mediator should also ask each party what they hope to achieve from the mediation and be reminded that it is not about winning or losing, but about finding a workable solution that suits everyone involved.

 

Explore the issues together

After the mediator has spoken to both parties separately and obtained a good idea of the issues involved, it is a good time to arrange a joint meeting. The session should be opened on a positive note, by thanking them both for attending and being open to resolving the conflict. They should also be reminded of the ground rules at this point.

The mediator must summarise the situation and set out the main areas of agreement and disagreement. Every issue should be explored in turn, with the parties being encouraged to express how they feel to each other, making sure they have equal time to talk, and the ability to express themselves without interruption. If they become aggressive or defensive, the mediator should look for ways to bring the conversation back to the issues at hand, encouraging the parties to empathise with each other, and improve their understanding of the other’s position.

 

Negotiate and compromise

After both sides have given their views, a good mediator will try to shift the parties attention from the past to the future. They will go over the points that have been raised and identify areas where they have some shared opinions. Resolving these issues first is an easy win and will help promote positive momentum, bolstering both parties’ confidence that a mutually beneficial solution can be found.

Parties should be asked to make sure any solution reached is one they are happy with, and if a suggestion is deemed unreasonable, this must be addressed.

 

Create a written agreement

The mediator must ensure adequate notes are taken of every meeting, and once a solution has been reached, a formal agreement is set out in writing. The written agreement must be easy to understand, and any actions needed to be taken comply with SMART objectives (Specific, Measurable, Achievable, Relevant and Time-bound). Language should be jargon-free, and clear, and read back to both parties to ensure they fully understand what will be expected. And any points they do not fully understand or that are too vague or general should be clarified.

The mediator may consider asking each party to sign the agreement, which can add additional weight to the outcome and increase accountability.

 

Closure

The parties should be given copies of the agreement and the mediator should explain what will be expected of them once they return to the workplace. Take some time to prepare and decide how to overcome any issues that arise and explore options for dealing with them. Summarise next steps and offer continued support as a mediator.

The mediator may consider checking in with the parties informally at a later date, to ensure they are on track with their agreement.

You should bear in mind that mediation may not always end in an agreement being reached, despite a mediator’s best endeavours. In these circumstances, you will probably need to move towards a more formal procedure if the conflict cannot be resolved any other way.

Dealing with work disputes is always problematic, but early intervention can pay dividends, offering a practical and cost-effective way to minimise the disruption to your business. Next time you notice tensions rising, encourage your employees to talk through their issues together, offer a mediator to sit in on discussions and help them towards reaching a solution.

 

Need assistance?

DavidsonMorris’ employment law experts are on hand to advise on all aspects of workplace dispute resolution, including the use of mediation. Working closely with our specialist HR consultants, we provide a comprehensive service for employers ensuring personnel concerns are handled correctly while supporting positive working relations and minimising legal risk. We also provide specialist, independent mediation support services, allowing employers to benefit from our experience in leading mediations while also removing the risk of perceived bias in workplace disputes. For help and advice, contact us.

 

Workplace mediation FAQs

How does mediation work in the workplace?

Mediation in the workplace is a voluntary and confidential process used in an attempt to resolve workplace conflicts. A neutral mediator (appointed internally or externally) works with both parties to try to reach an agreed solution that is suitable for all involved.

Can you refuse mediation at work?

Mediation is purely voluntary. However, if your case subsequently ends up in an employment tribunal, and you previously declined to attend mediation without good reason, it is likely the court will take a dim view.

What is employee mediation?

Mediation is used to resolve workplace conflict such as bullying, harassment, communication issues, or clashes of personality. It is not generally used to sort out issues related to pay or other disputes around gross misconduct.

 
Last updated: 26 January 2022

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