Some workplace disputes seem to drag on and on. Others threaten to destroy cohesion within a company. In all cases they are a distraction from the real business of work.
We often hear about mediation as a way to resolve seemingly intractable disputes, but what exactly is it and how can it help?
Mediation is type of alternative dispute resolution aimed at settling disputes between two or more people designed to achieve a clear outcome. A third party, the mediator, is there to help the parties reach a settlement. It can be used to resolve all kinds of disputes of any magnitude or content - high-value commercial disputes, bullying allegations, personality clashes, grievances over pay and benefits - really, anything where the parties are in disagreement.
There are two things that set mediation apart from other forms of dispute resolution:-
• it is always entirely voluntary; and
• the parties themselves decide the outcome, not a third party.
The voluntary nature of mediation is essential. It means that the parties, by the very act of agreeing to participate in mediation, start off with an implicitly declared wish to resolve their differences. Most people know that that will involve a degree of compromise. Compromise is often painful and sometimes the parties need a little help in coming to a realisation that this will be necessary. However, they always know that they can opt out at any stage for any reason, good or bad. The security of knowing this is important psychologically.
The mediator remains strictly neutral and is not there to decide anything or judge the worth of anyone’s arguments. He or she is not an arbitrator who comes to a decision after hearing both sides’ positions: they facilitate, structure and guide discussions, sometimes nudging in one direction or another as the session proceeds, but they do not express a view. Normally the mediator will familiarise themselves with each party’s starting position by making contact with them individually first. That way the mediator gains an understanding of what the parties really want and is then prepared for how to conduct the joint session or sessions. Then, when the day of mediation arrives, usually the mediator will first meet and greet the parties collectively, introducing themselves and setting out the purpose, ‘rules’ and arrangements for the day. Then the mediator will spend time with the parties individually in separate rooms, before a joint session is then considered appropriate. The joint sessions then take place but are often paused so that the parties spend time apart to discuss matters arising with the mediator separately.
The aim of all this is always to produce a document at the end of the mediation session, a written agreement setting out what the parties have decided. That may be payment or mutual promises to do things or a commitment to act in a certain way. It may or may not be legally enforceable but that is almost beside the point: an agreement means, at least in principle, that the dispute is over.
There is another form of mediation that is often successful: judicial mediation. This happens where proceedings have been issued in an employment tribunal and the parties have expressed a wish to try to settle the claim with the help of an employment judge. The judge will typically have a meeting with both parties and then shuttle between rooms listening to both sides and conveying messages to help negotiations along. If the judicial mediation is successful, the proceedings end there and the outcome is written up in a ‘COT3 agreement’ under the auspices of ACAS. If it is unsuccessful, the mediation cannot be referred to at a hearing and all of the discussions are regarded as ‘without prejudice’. The judge who acted as mediator has no more to do with the case.
