Why use mediation?
An independent mediator not previously involved in the grievance issues, facilitates and manages the process with the aim that the parties reach a solution that they are both happy with.
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.
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
- Workplace mediation – where the employment relationship is continuing at the commencement of the mediation.
- 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.
If an agreement is reached, it will be written down and signed by both parties.