Conflict in the workplace is too common. Most employees and employers want to avoid litigation. It is uncertain (always), time consuming, stressful, costly and has reputational risks for both parties.
Why do employers/insurers/lawyers bypass mediation and reach for the grievance or legal path? As one employer experienced, lawyers often want to take the litigious route instead of focussing on resolving the situation. It is not lawyers who should be telling clients what to do but vice versa.
What is mediation
Mediation is a voluntary process of facilitated negotiation between two or more parties, in which a neutral third party, the mediator, helps these parties find a solution together. Its features are that it is:
- Voluntary: parties can refuse to mediate, they can start mediation and withdraw when they like;
- Off the record (Without prejudice) so cannot be used in litigation;
- Confidential: a mediator must keep confidential anything they have been told by a party unless the party gives specific authority to pass the information to the other;
- Flexible and informal: there is usually an agreed format but this can be varied;
- Forward looking: the aim is to find a solution – through positive, constructive conversations.
Note: mediation is not the same as ACAS intervention or lawyers getting together to discuss settlement.
- It enables the parties to explain their concerns (to each other). This needs to be done before any attack (grievance), then defensiveness and counter-attack, by which time the parties are set down the adversarial track, sometimes encouraged by family, friends and lawyers;
- It develops a relationship of trust between the parties during and after the mediation;
- It may help the employee keep their job and restore a broken relationship;
- It avoids the long time taken dealing with grievances and/or a tribunal claim;
- It is an informal process where individuals can get things off their chest in a safe environment.
When to involve a mediator
AS EARLY AS POSSIBLE. A facilitated conversation can be key to resolution. The longer the conflict, the more entrenched it becomes. Mediation should come before the grievance or legal action.
Separate legal advice (if you need it – it is not essential)
The mediator is not there to advise either party – even if the mediator is a lawyer specialising in the area. If you need a lawyer, find one who understands and is committed to mediation.
Key points for a good mediation
- Time limit the mediation, generally to the working day, not an 18-hour marathon;
- It is not necessarily helpful to have a lot of documents, as this will focus on the past not the future. A single side setting out past concerns with objectives on the other side is often enough. This should be agreed before the mediation.
- The mediator should speak to the parties before the mediation:
- To explain the fundamentals of mediation,
- To explain the process and that it is flexible
- To manage expectations (mediation will not always succeed),
- To set the tone, which is positive and forward looking,
- To find out who will attend and exchange that information; and
- To deal with any concerns or worries.
- On the mediation day, there is usually a conversation with each party separately, to ensure they understand and are happy with the process. Bear in mind that a party on their own might feel disadvantaged by the other having a lawyer. Often, it is better to have lawyers at the end of the phone, rather than in the room.
- At the joint session, it is important to be able to explain the history, the hurt without attacking each other – and to acknowledge the other party’s position.
- The rest of the day may be a mix of single and joint party meetings, depending on the circumstances. It is helpful if the parties meet again at the end. There is no one rule that fits all.
If there is a lawyer, there may be a settlement agreement, which must be in writing. If ACAS is involved the agreement can be done with a COT3 and this can be agreed once the ACAS officer has spoken to both parties and agreed the wording with them.
If there is no final agreement on the day, agree next steps (in writing) and what to do if things break down – the default position. The mediator may be able to help even after the mediation day.
And for all parties, including the mediator, some top tips
- Cast off the armour – as early as possible;
- Listen carefully to what is being said and note the positives;
- Acknowledge emotions – they are always there, sometimes hidden;
- An apology is always a great way of moving forward: don’t let a lawyer tell you it is a sign of admission to be avoided at all costs;
- Remain positive (and patient); it is likely to be a roller-coaster, with highs and lows.
How YESS can help
We are a charity committed to the resolution of employment disputes without litigation.
As we are non-profit making, we can offer fixed affordable fees, starting at £750+VAT for a one-day mediation (dependent on location).
Our qualified mediators, Camilla Palmer and Emma Webster, have a wealth of legal and practical experience.
Camilla Palmer QC (Hon)
If you have a workplace situation you feel may benefit from mediation, or if you would just like to know more, please contact us here.