Notes on the workplace mediation process

What mediation is

Mediation is a forum for discussion and negotiation facilitated by a neutral person. It is effective for the following reasons:-

  1. It gets the relevant people in the same place at the same time and focusing on the same problem, not just on procedure.
  2. It is confidential. A party can get things out in the open before a neutral mediator in a confidential situation. The mediator does not pass on information to the other party unless specifically authorised to do so. The mediator may then be able to find ways for the other party to cater for the fears or concerns of the first party which might otherwise not be addressed at all.
  3. The parties are able to get things off their chest without sabotaging the discussion. Each party can say what they feel, but in a controlled environment.
  4. The parties may feel that they have been listened to and understood, by the other party and by the mediator.
  5. Once the mediator has established some trust with a party, that party can talk in confidence to the mediator about what they hope to achieve. A dispute may appear to be about one thing such as a particular working practice, but it may be that there are underlying issues. It might be possible to think of other ways of resolving the problem, instead of simply accepting what one party or the other may be demanding.

The procedure before the mediation

Mediation is a voluntary process so it is only possible if all parties agree to it. We are happy to talk to any party about how mediation works.

If there is agreement to mediate, we will arrange a convenient date for the mediation. Parties may if they wish attend with a representative or supporter, although the mediator will wish to ensure that the numbers are reasonably balanced if possible. Once the date is fixed, the mediation fee becomes payable.

Then each party tells the mediator briefly what the problem is from their point of view, either on the telephone or in a short meeting, or perhaps in a short briefing paper. Each party should also supply the mediator with copies of any key documents, such as any relevant contract. The parties may agree on the key documents to avoid duplication, but it is not essential.

It is preferable for the mediator to be briefed a week or so before the mediation. If a party wishes he or she may send a copy of any briefing statement to the other party as well, but this is not essential. If any briefing statement is for the eyes of the mediator only, then the mediator will keep it confidential and not communicate its contents to any other party unless specifically authorised to do so.

Meanwhile we send the parties a standard form of mediation agreement for their approval.

The mediator may visit the parties in any event before the mediation to introduce himself or herself in an informal way, but in any case would usually telephone them before the mediation.

The mediator will clarify that all parties will have authority to come to an agreement to resolve the dispute at the mediation.

The procedure at the mediation

The mediator will decide on the procedure in consultation with the parties. To some extent it may depend on the venue. Ideally the mediation would take place at a neutral venue outside the workplace. In that case, the parties should arrive fifteen minutes or so before the mediation. The mediator greets them separately and arranges for them to sign the mediation agreement.

The mediator will then usually spend a little time with each party separately to see how they stand.

There will then usually be a joint meeting if the mediator considers it appropriate and if the parties agree. This is the most formal part of the process. The mediator invites all present to introduce themselves and then sets out the ground rules. The essential ground rules are:-

  1. The mediator is completely neutral.
  2. The mediator will not impose a solution - it is for the parties to reach agreement if they wish. Nor will the mediator give any evaluation or judgement.
  3. The mediator will not give legal advice. The parties are free to take their own independent legal advice at any time.
  4. Attendance at the mediation is voluntary - parties are free to leave.
  5. The mediation is without prejudice to any grievance or disciplinary procedure and without prejudice to any employment tribunal or court proceedings.
  6. The process is confidential, so that neither party may repeat outside the mediation anything of a confidential nature said in the mediation, unless specifically agreed in writing.
  7. Any private sessions between the mediator and a party are confidential, so that the mediator will not repeat anything of a confidential nature to any other party unless authorised to do so.

Each party is then invited by the mediator to state their case uninterrupted, taking up to about ten minutes. It is usually preferable for the parties themselves to do this, but they may choose to ask their representatives to do it.

After that the mediator usually sees each party separately again. There is no hard and fast rule about how a mediation is conducted. The mediator aims to establish a good relationship with each party by listening to what they say and seeking to understand the dispute from their point of view. The mediator can then assist the parties to communicate with each other effectively and to negotiate, either by further separate meetings or by bringing the parties together if appropriate.

If agreement can eventually be reached, it will normally be put into writing and signed there and then. The agreement does not have to be legally binding - it can be an agreed statement of intent about future arrangements or conduct. If the parties have been able to reach an understanding in the mediation then usually non-binding agreements are effective in practice.

Mediation is not always easy - it can be challenging and uncomfortable. It is also common for parties to feel part way through the mediation that they are wasting their time, that the other party simply does not understand the problem and that they might as well leave. Our mediator will always ask the parties to persevere with the process, and it is usually possible to work through the obstacles with the mediator’s assistance to arrive at an agreement.

Preparing for the mediation

Mediation is a means for clear communication between the parties, but it is also a negotiation. In any negotiation you want to persuade the other party about the justice of your position and that they should address your concerns. The parties should therefore prepare themselves for a negotiation. If a party is going to allege something for which there is documentary proof, they should be prepared to produce whatever is necessary to persuade the other side of the position.

If you feel your position is strong but you cannot persuade the other side of that, then you may not be able to come to an agreement.

It sometimes becomes apparent during the mediation that further work is needed by the parties. In that case it is possible for the mediation to be suspended so that the parties can for example exchange further information. The mediation can then be resumed at a later date if an agreement is not reached in the meantime.

Each side should consider in this context how strongly they wish to put their case in the opening joint session. It may be helpful to express a willingness to come to a mutually acceptable agreement or arrangement if you think that that will assist in the discussions. But it is up to each party to judge what they think is in their own best interests.

Complaints procedure

We hope that you will find that mediation is a positive and satisfactory experience, and we will do our best to ensure that it is. However if you are dissatisfied with the performance of our mediator or our service desk in any way, please do not hesitate to let us know. A copy of our complaints procedure is available on request.

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"We were impressed"


Solicitor

"ability to spot lateral connections"


Client

"I had a pre-conceived idea that mediation would resemble marriage guidance but you reassured me. You explained clearly how it would work and what would be involved. I found the mediation incredibly useful and worthwhile. It totally solved the problems I was having and gave me a better understanding of my colleague's viewpoint and concerns. I was delighted and slightly amazed that it worked so well."


Party to mediation