Workplace mediation presents a number of challenges for parties and employers that may not be present in more “commercial” disputes where legal claims are involved.
In the workplace, disputes and relationship breakdowns can range from apparently minor frictions to issues of alleged bullying and discrimination capable of escalating into legal claims.
The parties in a workplace mediation are likely to be work colleagues.
Employers, often through the HR team, will also be interested and are commonly the “commissioner” of the mediation. The dynamic of the dispute is different from a ‘commercial’ mediation and the possible outcomes more wide-ranging.
The success of the process can depend heavily on how it is designed. Therefore, here are seven issues to bear in mind as commissioning employer, legal advisor or party.
1. Authority and Status
The right of the parties to reach their own agreement and the role of the employer in implementing the outcome are two issue to consider.
Mediators may be requested by the parties who have reached an understanding to liaise with their employers to facilitate how that understanding can be implemented. In relation to status, the issue may be between employees of significantly different grades, bringing an extra dimension to the dispute.
2. Consent
Do the parties come to mediation intending to see if a resolution can be achieved, or do they feel instructed to mediation and it is something that is being “done to” them?
Allowing for conversations between the mediator and the parties, to discuss the suggestion generally and to explain what might be involved, before there is a commitment to mediate, will help create an environment more conducive to mediation.
3. Confidentiality
The employer has an interest in the dispute but is not usually a party to the mediation meetings.
There needs to be an understanding between the mediator, the work colleagues, and the commissioning employer about what, if anything, is reported back to the employer about the mediation.
The prospects of success are enhanced if the parties’ control what the employer is told and feel able to rely on the mediator’s commitment to keeping private conversations confidential.
A clear understanding, ideally in the form of an agreement, on this at the beginning is crucial.
4. Status of Outcomes
When a workplace dispute is resolved it is usually with an agreement as to how colleagues will work together in the future.
Normally, this will not have a legally binding status and be, essentially, a statement of intent.
Consideration should be given to how the implementation of such agreements are reviewed.
Should the mediator be asked to contact the parties, perhaps months later, to facilitate the progress continuing?
5. Planning
A one-day mediation may not be the best way forward.
The classic model of private and joint meetings will be modified.
The process may be spread over a number of days, perhaps with periods of time in between, and will need to fit around work commitments.
Delays, which can be frustrating for everyone, will need to be acknowledged and worked around.
6. Where does Mediation Fit Into Formal Processes?
In any workplace dispute there is the lurking prospect of more formal employment procedures and potential claims.
Relationship breakdown at work can lead to disciplinary and grievance procedures. A clear understanding as to where a mediation fits in these processes, if they are likely to be invoked, should be set out at the beginning.
Ideally, it should be agreed that the mediation will not be referred to if more formal procedures follow.
Many employers have procedures that explain the part that mediation plays in formal processes.
7. Attendees
Workplace disputes tend to have high emotional content.
Frequently, parties attend the mediation alone. The prospects of resolution are better if parties can be accompanied, even when there may be no express legal entitlement for this.
Who should be allowed to come as a supporter?
It might be a work colleague, or a union representative. Might there also be cases where someone outside the organisation is allowed to attend, with what safeguards as to confidentiality?
Final Thoughts
Workplace mediation throws up a number of challenges that are less common in commercial disputes taking place in the context of legal claims.
Simply asking a mediator to intercede between two work colleagues who do not get on, is to be avoided. The mediator needs, at the outset, to work with the parties and the employer to get an understanding between them about a number of process design aspects.
It is easy to overlook this when emotions are running high in a matter that has been developing over weeks, months or even years.
Failing to work on the process in the preparation stages of the mediation can reduce the prospects of a positive outcome which might result in a more intractable problem.