There are a number of ways in which you can attempt to resolve an employment dispute and reach a settlement without court or tribunal proceedings. One of those ways is workplace mediation. In this blog I explain what workplace mediation is and when it might be used.
What Is Mediation?
Mediation is a flexible and confidential form of alternative dispute resolution in which an independent third party (the mediator) facilitates communication between the parties to help them resolve their dispute. It concentrates on helping those involved move from entrenched positions, while the parties still retain responsibility for achieving a solution.
Mediation is voluntary and cannot take place if one or more of the parties refuses to take part. It’s also non-binding unless and until an agreement is reached. Entering the process does not in itself bind any party to settlement. If settlement is not achieved, the mediator will not impose any settlements.
Mediation is private, conducted without prejudice and with total confidentiality. In the event the parties are unable to settle their dispute, they cannot discuss the content of the mediation in any subsequent court or tribunal proceedings, although they can usually refer to the fact that mediation has taken place.
Workplace mediation refers to a dispute where, at the outset of the mediation, there is an ongoing working relationship between the employer and employee.
In What Circumstances Might Workplace Mediation Be Appropriate?
Mediation might take place as a result of allegations of discrimination or harassment, performance management issues, following a dismissal or a breakdown of trust or relationships such as between a manager and a subordinate, or facilitating the return of someone who has been on long-term sick leave.
What Are the Potential Benefits of Workplace Mediation?
It’s future focussed in that it aims to find a way forward so that the working relationship can continue. Dealing with disputes via an employer’s grievance and disciplinary processes can involve a determination of who’s right and who’s wrong, but a mediation does not have to apportion blame to any party. It helps parties to consider new ways of thinking and approaches to resolving their dispute that they may not have previously considered. Outcomes can be agreed that would not be available from the courts or tribunals, such as providing an apology or training or agreeing different hours of work.
Workplace mediation can be set up quickly. Dealing with disputes through an employer’s disciplinary and grievance procedure can be extremely time consuming and a drain on financial resources, particularly for the employer.
What Are The Potential Disadvantages of Workplace Mediation?
It is not an easy option. It requires the parties to face up to and address issues and meet with the other party. This can be a stressful process.
It doesn’t stop litigation proceedings. In some cases, legal action might have already started before mediation is attempted. Parties might also want to start litigation to demonstrate how seriously they take the issues in dispute and then take part in mediation to secure a confidential and quick result.
How Does It Work?
Mediation usually takes place over a day although there may be follow up in a few weeks to see how things are working, where an agreement has been reached.
Other types of mediation such as employment mediation (generally where the working relationship between the employer and employee has broken down or ended by the time mediation takes place) and judicial mediation (which can take place after employment tribunal proceedings have been issued, see our blog https://lincslaw.co.uk/blog/should-i-consider-judicial-mediation-for-my-employment-tribunal-claim/ for more information on this) tend to involve the parties being in separate rooms with the mediator shuttling between them. A workplace mediation is much more likely to involve the parties sitting around the same table and talking and listening to each other. This can help ensure the parties confront how a dispute arose with a view to ensuring that a similar situation does not arise in the future. If either party does not want to be in the same room as the other party then of course they do not have to be. Virtual mediations can also be conducted quite successfully.
Some larger employers might have their own internal mediators. Advantages of this are that there is a mediator on hand for when problems arise and the mediator will know the business well. Disadvantages can be that the mediator may not be perceived to be independent of the issue and may know the parties involved. Co-mediation – where there is one internal and one external mediator – may be an option here.
What If Mediation Is Not Successful?
If either party is not satisfied with the process, they or the mediator can end the mediation at any time. Parties can then continue with the employer’s internal procedures or seek resolution via the employment tribunal or court system.
Lincs Law Employment Solicitors Can Help You
If you are an employee or employer seeking guidance regarding a workplace dispute please contact us for a free enquiry. Simply use the contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 and we’ll be happy to help.
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors