When is mediation appropriate?
Mediation can be a successful method of resolving disputes at all stages. At the earlier stage it can be used where there is a conflict between employees, when a grievance has been raised or in a disciplinary situation. At the later stages it can be used when a claim has been submitted to the employment tribunal or court and during the litigation process before a hearing has taken place.
It has a high success rate. Even if settlement is not reached it often happens soon afterwards because the key issues of the dispute have been clarified. This may allow the parties to resolve their differences.
It’s quicker, less stressful and cheaper than a full employment tribunal or court hearing. It also takes up a lot less management time for an employer. Mediation can be set up within a matter of days and is usually completed in a day.
It allows the parties to remain on good terms and can repair working relationships in the workplace. Mediation focuses on finding a solution rather than apportioning blame between the parties. This is particularly useful where the employment relationship is continuing.
It gives the parties control over the process rather than handing this over to a Judge. This can be a particularly empowering experience for both parties and allows working relationships to heal.
It allows a creative solution to be found. Mediation settlements can include a variety of non-financial elements which an employment tribunal or court would not be able to order. For example, a mediation agreement could provide for an agreed reference or an apology.
It can help the parties to communicate with each before their positions become entrenched and they will only communicate through legal advisers. In particular, the joint session during the mediation allows communication directly between the parties, which can be critical to understanding and resolving the dispute.
What is the role of a mediator?
- A mediator will manage the process, instilling confidence and moving matters forward.
- A mediator will help the parties to resolve their differences so that they find a way of working together to reach an agreed settlement.
- A mediator will act as an information gatherer in order to identify common ground between the parties.
- A mediator will act as a realist ensuring that the parties look at their true position.
- A mediator is a problem solver bringing fresh ideas and a creative mind to assist the parties to reach an outcome that best meets their needs.
What is the mediation process?
Each mediation process can differ according to the needs of the parties and the dispute. Usually the parties will attend alone but may wish to bring a friend, family member or solicitor.
Before the mediation process commences the mediator will make contact with both parties to obtain an outline of the dispute and discuss whether mediation is suitable. These conversations are confidential and the mediator will not disclose to the other party any details of what was discussed unless specific permission is given.
If mediation is suitable and the parties wish to proceed then an Agreement to Mediate will need to be signed by both parties.
The mediation itself commences with the mediator meeting with both parties, often called the joint session, in order to set out the aims and objectives of the mediation.
The parties then move to separate rooms so that each party can discuss the dispute freely and in confidence. The mediator will move between the parties exploring the further issues identified in the joint session. It is often the forum for a “reality check”, where the mediator helps the parties consider the potential consequences of failing to resolve the dispute, which may include going back to litigation.
If mediation is successful the parties or their legal adviser will need to prepare a document to record the terms of agreement, which is then signed by both parties.