Mediation can offer a proactive approach to managing and resolving people issues in the workplace. We help employers with workplace dispute resolution.
Workplace conflict is inevitable in most organisations, and how it is managed will directly influence the outcome – either facilitating resolution in a positive working environment or escalating into wider issues, such as a resignation and a potential tribunal claim.
Where a conflict is disrupting the workplace environment and negatively impacting morale, performance and relationships, employment mediation may be able to offer an informal and constructive approach to resolution.
Mediation is voluntary and confidential. It can help in a wide range of workplace scenarios and circumstances where management or HR efforts have either failed or are not appropriate to resolve the issue, such as ongoing issues between a line manager and team member, or where an employee’s comments have caused offence.
As a form of alternative dispute resolution, workplace mediation can be an effective way of addressing conflict at work, helping to resolve disagreements on a confidential basis without the need for more formal proceedings, including employment tribunal complaints.
Mediation involves a neutral, third party facilitating discussions between parties that are in conflict. The objective of mediation is to allow both sides to put forward their side in a way that is constructive and focused on resolving the disagreement.
Where appropriate to use, workplace mediation can be an effective way of helping to repair and maintain professional relationships, by encouraging and empowering those involved to find solutions rather than allocating blame. This can be especially helpful where the employment relationship is continuing. Additionally, workplace mediation can help to open up the lines of communication between the parties to a dispute or disagreement, in this way providing a solid foundation for a more positive working relationship moving forward.
There are several benefits to mediation including helping:
There are various types of conflict for which workplace mediation may be used, although mediation is often best-suited to resolve disagreements due to workplace relationships, rather than legal disputes, such as pay or any issues relating to employee conduct and capability. There are no hard and fast rules, but you may want to use mediation to resolve:
This could be between an employer and an employee, or a line manager or team leader and a direct report. It could also take place between two or more employees involved in a disagreement.
Mediation is essentially a way to mend relationships when there is a disagreement at work. This means that it is not usually appropriate for legal or contractual issues such as benefit and pay disputes, nor any disputes around misconduct or poor performance that could potentially lead to an employee’s dismissal.
A pay dispute that cannot otherwise be resolved would usually need to be dealt with by way of formal grievance proceedings, while conduct or capability matters are often best dealt with by way of a formal disciplinary or any designated company capability procedure.
As a voluntary process, workplace mediation must also only be used where the parties to a dispute or disagreement consent to this process. However, simply agreeing to engage in this process may not always be enough, where the parties must also be open and willing to find a workable solution to their dispute for mediation to stand any chance of succeeding.
Mediation should not be used where a formal investigation is required under the relevant grievance or disciplinary procedure, for example in relation to misconduct or harassment allegations or pay-related complaints.
Mediation should also not be used if there are outstanding factual issues to be determined. Mediators are not arbitrators or judges, as such it would not be appropriate for them to decide on matters of fact. Instead, these issues would first need to be dealt with appropriately, typically through investigation, before mediation is considered.
Mediation could also be used once all other internal procedures at work have been completed, with the objective of helping to rebuild relationships following any grievance or disciplinary procedure. This is because the employment mediation process is a relatively informal and flexible process, where this can be tailored to suit the unique needs of the people and circumstances involved, provided they agree to engage in mediation.Â
Mediation is a confidential process held by a neutral person, known as the mediator. The mediator is entirely impartial, which means that they will not take sides. They are simply there to help everyone involved find a solution they can all agree on. The mediation process is not about judging who was right or wrong based on past conduct, but is designed to identify ways in which the parties to a dispute can agree on working together in the future.
There are typically two main stages to mediation, where the mediator will meet with each party separately in stage one, so that they can listen to each perspective, before moving to a joint meeting in stage two, when the parties come together and have a facilitated dialogue. In most models of mediation there is usually some uninterrupted time at the start of the session, when each person will take it in turn to speak and listen. The mediator will then utilise facilitation and conversation management skills to help the parties identify the key issues and talk through them to a mutually acceptable solution that everyone can agree on.
Given the flexibility of mediation, there are a number of possible outcomes, including:
Mediation allows for creative solutions, where settlements concluded at workplace mediation can include a variety of non-financial aspects which tribunals have no jurisdiction to order. They may even include an apology from one or both parties involved.
If an agreement can be reached in workplace mediation, this will not be legally binding. This means that if either party breaches this agreement, the non-defaulting party will not have a basis to enforce its terms. However, mediation agreements are made with a moral voluntary commitment which can make them effective in themselves. Equally, a breach of any agreement may then mean that any ongoing dispute will lead to other more formal proceedings, which can act as a powerful incentive to stick to what was agreed.
The person leading the mediation process should be a qualified mediator, who is both neutral and has no conflict of interest relating to the matter being resolved.
Effective mediators are skilled and experienced in ensuring clarity of objectives, guiding the parties through parties while maintaining focus on solving problems, and helping the parties to consider new ways of thinking.
In the absence of anyone skilled or experienced in the organisation, most organisations will engage an external, professional mediator to lead the process.
This can help ensure the integrity and effectiveness of the process. Using an external mediator can also provide further assurance as to the confidential nature of the proceedings.
Employment mediation is voluntary and all parties involved have to agree to take part willingly.
This means you cannot make it compulsory for an employee to take part in mediation.
Part of the mediator’s role should be to ensure both parties have a clear understanding of what the mediation process is and what the mediator can and cannot do. Typically, this involves having a separate, initial discussion with each party. The employee may decide after this discussion not to proceed with the mediation. Withdrawing their consent to Workplace Mediation means the process will not progress.
Likewise, if a mediator considers there to be any element of obligation being placed on an employee to participate, the mediator may determine the process as being inappropriate.
The format of the mediation should be agreed with the parties in advance. This can be clarified by the mediator during the initial scoping discussions. For example, one party may not wish to be in the same room as the other. Mediation could also take place online or in person. Online mediation has become increasingly common due to the prevalance of remote and hybrid working.
The format of the mediation should also be approproate to any agreed reasonable adjustments that have been requested by a party with a disability recognised under the Equality Act.
This will depend on the circumstances.
Generally speaking, mediation is considered to be most effective when it is focused on the people in disagreement working with the mediator directly in an open and honest way and without additional contribution.
However, you should consider any such request and if a party can show good reason why they should be accompanied, it could be deemed unreasonable to deny this. Importantly, if you do agree to allow someone to be accompanied, you will need to inform all other parties of this in advance.
The outcome of any mediation process will depend on the disagreement being addressed. If agreement is reached through mediation, the terms should be set out in writing by the mediator, with both parties signing the document as proof of their agreement and of their commitment to adhere to the terms. Provision should also be made to allow for regualar reviews of the situation to ensure both parties are meeting their commitments and that further disagreements do not develop.
One of the advantages of mediation is the flexibility it affords, but the flipside of this is that it is not legally binding.
The cost of any workplace mediation process should be borne by the employer. It would not be appropriate for an employee to be asked or made to contribute to the cost of workplace mediation.
It is usually a good idea to try and resolve any dispute informally first, before thinking about using workplace mediation. If the matter cannot be resolved informally, you may then want to suggest mediation, depending on the nature of the dispute. Mediation can be used at any stage in a dispute, although it is best to start this process as soon as possible, where the earlier the matter is dealt with, the less chance there is of things escalating into a situation where an employee resigns and/or lodges a tribunal complaint.
As workplace mediation is entirely voluntary, parties to a dispute do not need to take part in this process if they choose not to. Still, given its benefits, it is important that the option of workplace mediation is offered to the parties in a positive way, but without obligation.
In broad terms, there are two ways you can introduce mediation to your workplace. You can either use an external mediator who comes to your workplace or set up your own internal mediation scheme by training employees to act as mediators. However, the option you choose should be suitable for your workplace. For example, a larger organisation might invest in its own mediation scheme, while a smaller organisation might use an external mediator, as and when needed. Using an external mediator might be a good option for a smaller organisation, as it can be expensive to set up an internal scheme. It can also be difficult to make sure that employees in a smaller organisation are impartial and available.
For larger organisations, you may even want to consider using a combination of both internal and external mediation, depending on the circumstances. For example, if you have invested in your own internal mediation scheme, you might still use an external mediator if the internal mediator has any conflict of interest in the context of the dispute or is not available quickly enough. An external mediator may also be more appropriate where those involved in potential mediation are senior managers or the issue(s) at the heart of the disagreement involve an especially sensitive situation for some or all of those involved.
Online guidance on how to carry out successful mediation in the workplace — ‘Mediation: an approach to resolving workplace issues’ — can be found on the Acas website. Acas can also advise employers on introducing mediation in the workplace, as well as provide external mediators or train staff in conducting mediation at work, offering a 5-day accredited training course: ‘Certificate in Internal Workplace Mediation’.
If the mediation process fails to result in any agreement, the options will depend on the nature of the disagreement. In some circumstances, it may be appropriate to take some time and revisit mediation. Or, it may be appropriate for the issue to be dealt with using the relevant formal procedure. For example, if an employee is complaining of bullying, they could bring a grievance. If the grievance or disciplinary procedure has been exhausted, the complainant could look to bring a claim to the Employment Tribunal.
Mediation is one form of dispute resolution used in the workplace to help avoid the cost and hassle of tribunal claims. Other types of dispute resolution include conciliation and arbitration.
Conciliation, like mediation, is voluntary. It is used specifically before a tribunal claim can be made (early conciliation), or after a claim has been made (conciliation). ACAS offers a free early conciliation service.
Arbitration is a process by which an independet adjudicator is engaged to look at all of the issues and facts of the dispuste so as to make a decision on the matter.
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If you have been unable to resolve a dispute between you and an employee, the employee may decide to lodge a complaint before the employment tribunal. However, both you and the employee will first be offered the chance to engage in early conciliation.
Early conciliation is another form of alternative dispute resolution that can be used to help resolve a workplace dispute without recourse to tribunal proceedings. This is a procedure offered by the Advisory, Conciliation and Arbitration Service (Acas) in which an impartial Acas conciliator will provide the prospective parties to a claim with the chance to come to an agreement without the need for lodging proceedings before the tribunal.
Unlike workplace mediation, which is usually in person and completed in just one day, Acas conciliation will be done over a period of 6 weeks via telephone, where the conciliator will individually discuss the issues with both sides with a few to reaching an agreement. The service offered by Acas is free, independent and confidential, where the conciliator will:
An employee must tell Acas about a workplace dispute before making a claim to an employment tribunal, where Acas will offer the parties early conciliation at this stage. As with workplace mediation, neither party is obligated to agree to Acas conciliation, but it can help to resolve a dispute without recourse to tribunal proceedings. As an employer, you can also call Acas directly to request talks if you think a dispute with an employee could lead to a tribunal claim. For example, you may decide to contact Acas in the event that workplace mediation is not appropriate for the type of dispute in question. You can contact Acas by telephone on 0300 123 1122, Monday to Friday, between 9am to 5pm.
If both parties agree to engage in early conciliation and an agreement can be reached, Acas will write up what you agree in a settlement form called a ‘COT3′. Once the parties have agreed to this, the settlement will be legally binding. If a case is settled in early conciliation, the employee will no longer be able to take the matter to the employment tribunal. If, however, an agreement cannot be reached, the employee will be given a certificate with a number on it which they can use to complete Form ET1 if they still decide to make a claim.
Mediation remains a voluntary process but for employers, there are many reasons why it merits serious consideration as a way to settle a dispute within the workplace.
Key considerations for workplace mediations:
DavidsonMorris provides a professional, independent mediation service, aimed at facilitating resolutions that work for the individuals concerned and the organisation.
We help employers and HR teams across the private, public and voluntary sectors optimise working relationships, to promote positive working and wellbeing while reducing the risk of legal complaints.
We are experienced in helping to overcome disputes by bringing together employees and facilitating an in-depth, constructive and confidential conversation in a safe environment.
As an independent party, we are entirely objective and without knowledge of internal politics, ensuring neutrality and confidentiality of discussions.
Our mediation service will:
For conflicts where mediation won’t be appropriate or effective, we can make recommendations for next steps and alternative options.
Employment mediation, also referred to as workplace mediation, is a form of alternative dispute resolution that can be used to help settle a dispute at work on mutually agreeable terms, in this way avoiding the need for tribunal proceedings.
Workplace mediation is not usually legally binding but, as a voluntary process, the parties are often invested in a positive outcome. This means that the parties, even though not legally bound, will often be willing to abide by their agreement.
When it comes to workplace mediation, this can be an extremely effective method of resolving disputes and disagreements at work, where the available statistics for 2021 to 2022 show that 83% of Acas-led workplace mediations were fully or partially resolved.
Workplace mediation is used to resolve disagreements around working relationships, such as complaints of bullying and harassment, communication problems or personality clashes. It is not designed for things like pay disputes, or issues around conduct or capability.
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