The use of mediation is anecdotally increasing in employment relationship disputes but it is still massively under-utilised by employers who tend to fall back on internal grievance processes instead.
The reason for this is usually due to a lack of understanding about what mediation is and when it can be used. Some employers mistakenly believe that once a formal grievance has been received, the grievance process has to be followed, saving mediation for later in the process, if at all. There is also the misconception that mediation is an expensive alternative.
So let's try to address these barriers.
(There are different types of mediation so this blog focuses only on the internal workplace mediation that I practice.)
What is workplace mediation?
Workplace mediation is a voluntary process which is confidential. It is designed to repair workplace relationships to a point where two parties can reach agreement as to how they can interact positively with each other in the working environment. It doesn't promise to make people best friends (although that sometimes can happen); just to reach a position where the interaction is no longer causing negative distractions and impacting the workplace.
The process used in workplace mediation means that hierarchies are irrelevant during the process so it can be used to resolve any dispute irrespective of seniority or organisational relationship.
While workplace mediation is usually between two individuals, workplace mediation involving more than two individuals is also possible. A common example of this is when mediation occurs between unions and management.
Workplace mediation is not legally binding and the parties involved hold each other to account for sticking to any agreement reached.
When can workplace mediation be used?
Workplace mediation is a process that can be used at any stage of an internal dispute without prejudicing any other formal process that may still be required following mediation. This means that mediation can be used at any point of a grievance process and, if mediation doesn't solve all of the issues surrounding the grievance, the grievance process can still be followed with neither party being disadvantaged by participating in mediation.
Mediation can also be used following formal processes such as a grievance or where a performance management or disciplinary process has damaged the workplace relationship.
It can also be used where no formal process has been triggered but a fractious relationship is causing damage to the workplace environment for the parties and anyone else impacted by it.
Definitions
Voluntary: Anyone who takes part in mediation should be doing so out of choice not because they've been ordered or coerced to do so. Unless both parties are engaging in mediation with an intent to resolve the issues, it is unlikely to be successful. People may have reservations or scepticism about mediation and these concerns can be explored during a pre-mediation discussion with the workplace mediator.
Confidential: Mediation is an entirely confidential process with two notable exceptions; if a safeguarding issue is raised or if there is a disclosure of criminal activity. It may be that both parties agree for information to be shared outside of the mediation process but unless this agreement has been reached, the workplace mediator will only confirm whether the process has been successful or unsuccessful. Where mediation has been unsuccessful, the reasons will remain confidential.
Information disclosed during mediation will, in most cases, not be considered as part of any tribunal claim. Obviously, there will always be exceptions to this but as a general rule of thumb, tribunals will often accept that the mediation process is a positive attempt to resolve matters which should not disadvantage the employer.
Agreement: Where mediation has been successful, the mediator will usually end the process by articulating any agreement reached. This may be done verbally or in writing. Where a written agreement is reached, the mediator will provide only the two parties with a copy of this agreement and will not retain a copy of the agreement or share that with anyone outside of the process unless both parties have requested this to happen.
Why chose workplace mediation?
Simply put, it has a good success rate and it is a cost-effective way of resolving workplace disputes.
Anyone who has been involved with formal grievance procedures will be able to tell you that it can be a time-consuming, drawn-out, disruptive process that often leaves more people upset or unsettled at the the end.
While all employers do need to have a formal route for their people to raise workplace concerns (see my blog on this here), experience shows me that following this route is often not very effective at resolving issues and keeping people happy in their role. I'm not saying that resolving employee concerns is not an important matter, just that the concerns being raised are often not best addressed by this approach.
Unless the issues being raised are fairly simple to resolve, management time is often taken up investigating the concerns which could involve interviews with other employees or examining lengthy pieces of evidence. Writing up these investigations and providing the employee with a decision is also time consuming. And then there is the appeal stage....... All of this involving internal people whose time is probably better spent on more productive activities.
In contrast, mediation can be completed pretty quickly; usually within a couple of days at a cost of around £1,500. The cost can be less than this or it can be more than this depending on how complex the issues are but compared to the opportunity costs being lost by internal investigations, it represents good value for money. Particularly when you consider its high success rate. I currently have 100% success rate for workplace mediation cases although I do recognise this will change at some point because it is not guaranteed process.
Hopefully, this introduction to workplace mediation has been useful in explaining the basics. In future blogs, I will provide more details about how the process works and why it is so successful.
If you want to find out more or think that mediation may help you resolve an issue within your workplace, please get in touch.
