Workplace Mediation

Workplace Mediation

The mediator also acts as an information-gatherer in order to help the parties find common ground and to agree a plan of action to work co-operatively towards a solution that is mutually agreeable.

Workplace mediation is a voluntary and confidential process where a neutral third party (the mediator) helps individuals in conflict to communicate openly, identify issues, and work towards a mutually acceptable resolution. Mediation can be used to address a variety of workplace disputes, including interpersonal conflicts, performance issues, and organisational changes.

There are numerous benefits to using mediation:

• Mediation works – the success rate is approximately 90%. The parties tend to find the dispute clarified and have a better understanding of the other party’s perspective.
• Quick – litigation can be stressful, time consuming and expensive. Mediation can normally be arranged quickly and can usually be completed within one day.
• Aids communication – in litigation parties often become intransigent and avoid communicating with each other. A face-to-face, less formal, mediation meeting can assist communication and clarify the issues, establishing common ground and helping the parties agree a plan of action to resolve the dispute and prevent similar situations arising in the future.
• Repairs relationships – mediation focuses on resolving conflicts rather than apportioning blame. It is therefore especially useful when employment relationships are continuing.
• Flexible and proactive – the parties are in control of the mediation and a solution can be devised that is creative and specific to the personalities involved. It can be empowering for employees as they feel they are having their say.
• The solutions available in mediation are far greater than the solutions that can be ordered by Courts and Tribunals.
• Non-binding – unless and until an agreement is reached. The parties can discuss potential settlement options without binding themselves or the other side.

The ACAS Code of Practice on Disciplinary and Grievance Procedures encourages mediation. Although there is no obligation to mediate, any failure to mediate can result in a 25% adjustment to an award made in subsequent Employment Tribunal proceedings.

When might mediation not be suitable?

• To send a message to employees – the employer might decide to defend its position in an Employment Tribunal setting because it wants to send a message to the workforce that it will not settle claims which it regards as being without merit.
• Line management should take action – mediation is not intended to replace normal work place interaction or frequent and appropriate discussions between line managers and direct reports.
• One party is not committed- mediation only works when all parties are committed to the process. If a party is unwilling to compromise mediation will not be successful. Types of mediation

1. Workplace mediation – where the employment relationship is continuing at the commencement of the mediation.
2. Employment mediation – where the employment relationship has broken down or ended at the commencement of the mediation, or where Employment Tribunal proceedings have already been commenced.

What happens during mediation?

Generally, mediation starts with a meeting where both sides have the opportunity to explain their view of the situation without interruption. An open discussion usually follows, with the mediator helping to decide what the important issues are. The mediator will then spend time privately with each side to help find their desired resolution and will then act as a broker passing on agreed information and any proposals for settlement between the two sides.

Key Components of Workplace Mediation

1. Voluntary Participation
   • Mediation is a voluntary process; all parties must agree to participate willingly.
   • Emphasise the benefits of mediation to encourage participation.
2. Confidentiality
   • Mediation discussions are confidential, and information disclosed during mediation cannot be used in subsequent procedures.
   • Ensure all parties understand and agree to confidentiality terms.
3. Impartiality
   • The mediator must be impartial and not have any vested interest in the outcome.
   • Select a trained and experienced mediator to facilitate the process.
4. Structured Process
   • Mediation follows a structured process, including opening statements, issue identification, exploration of options, and agreement.
   • Ensure the process is clearly outlined and understood by all parties.

Legal Considerations in Workplace Mediation

1. Employment Contracts and Policies
   • Ensure mediation procedures are clearly outlined in employment contracts and company policies.
   • Regularly review and update contracts and policies to reflect any changes in legislation or company standards.
2. Confidentiality Agreements
   • Have all parties sign confidentiality agreements before starting mediation.
   • Ensure mediators are bound by confidentiality agreements.
3. Discrimination and Equality
   • Apply mediation processes consistently to all employees to avoid claims of discrimination.
   • Ensure any actions taken are based on objective criteria and are free from bias.
4. Documentation
   • Keep records of the mediation process, including agreements reached.
   • Ensure documentation is secure and only accessible to authorised personnel.

Steps to Manage Workplace Mediation Effectively

1. Develop and Communicate Mediation Policies
   • Create clear and comprehensive policies outlining the mediation process.
   • Communicate these policies to all employees and ensure they understand their responsibilities.
2. Select Trained Mediators
   • Use trained and experienced mediators to facilitate the mediation process.
   • Consider external mediators for particularly complex or sensitive issues.
3. Encourage Early Intervention
   • Promote early intervention to address conflicts before they escalate.
   • Encourage employees to seek mediation as a first step in conflict resolution.
4. Provide Training and Support
   • Offer training on conflict resolution and the benefits of mediation.
   • Provide resources and support for employees to understand and access mediation services.
5. Implement a Structured Mediation Process
   • Follow a structured process, including opening statements, issue identification, exploration of options, and agreement.
   • Ensure all parties are informed about the process and their roles.
6. Monitor and Follow-Up
   • Monitor the implementation of agreements reached during mediation.
   • Follow up with parties to ensure the resolution is effective and sustainable.

Handling Specific Situations

1. Interpersonal Conflicts
   • Use mediation to address interpersonal conflicts and improve working relationships.
   • Focus on communication and mutual understanding to resolve issues.
2. Performance-Related Disputes
   • Address performance-related disputes through mediation to identify underlying issues.
   • Work towards mutually acceptable solutions that improve performance and relationships.
3. Organisational Changes
   • Use mediation to manage conflicts arising from organisational changes, such as restructures or mergers.
   • Facilitate open communication and address concerns collaboratively.
4. Discrimination and Harassment
   • Address allegations of discrimination or harassment through mediation when appropriate.
   • Ensure a safe and supportive environment for discussing sensitive issues.

Conclusion

Effectively managing workplace mediation is essential for resolving conflicts and maintaining a positive work environment.  Our team of experienced employment law experts is here to provide you with the guidance and support you need to manage workplace mediation efficiently and legally.