What does the law require with regard to Mediation?

Mediation isn’t a legal requirement for businesses. What you do need to have in place is a written grievance procedure which at least complies with the statutory grievance procedure.

Sometimes especially in intra employee issues the use of the  grievance procedure does not always resolve conflict in the workplace.

There is another less formal voluntary process, but in certain circumstances just as effective procedure to address these issues which is mediation. Mediation can be used at any stage of conflict, although it is particularly effective if used in the early stages; it can prevent problems escalating leading to more formal action, including employment tribunal claims.

What is Mediation?

Face to face arbitration offers a way forward for employees in conflict to meet with a neutral third party (the ‘mediator’) with a view to reaching agreement between the parties about the best way the relationship can be managed. It gives the parties an opportunity to work together in order to rebuild the relationship and is therefore a dynamic, participative process rather than a passive procedure.

How does mediation work?

An experienced mediator will work with the employees to identify their “issues” and distinguish these issues from their respective “positions”. The mediator’s role is to enable effective communication to take place between the employees with a view to them reaching agreement, rather than the mediator imposing an outcome. Essentially, successful arbitration helps employees reach a “win win” outcome using shared problem solving techniques rather than risking the “win lose” outcome of the traditional adversarial approach. It is not legally binding, but having actively participated in the process it is more likely that the employees will commit to the agreed outcome.

In order for conciliation of a dispute to have a reasonable chance of success the following features are advisable:

  • The employees agree freely to enter into mediation – there can be no compulsion;
  • Each employee undertakes to treat the process confidentially but may agree to the mediator sending recommendations to the commissioning manager at the end of the process;
  • Either employee can withdraw at any time. Withdrawal will mean the end of the process and employees can pursue more traditional methods of raising complaints if they wish;
  • Employees understand that this process is seldom a one-off event, rather it is a process which may take time to achieve a positive outcome;
  • The mediator must be impartial and both employees need to agree to the choice of mediator;
  • The mediator will agree guidelines with both employees at the outset;
  •  The mediator’s role includes listening to employees’ views; identifying the cause of the conflict and working with the parties to develop a proposed course of action to resolve the problems within the relationship.

What are the limitations?

Mediation has its limitations in the types of disputes it can resolve. Clearly bullying and harassment issues are best suited to this process. ACAS in its new code on discipline and grievances recognises that a conciliation process is an option rather than being another procedural element which must be addressed.

It is helpful if the purpose and process of mediation is explained to all parties beforehand. Whilst the attitude and needs of the parties determines the length of time the process takes, a “typical” mediation would normally involve an initial one-to-one meeting with each person followed by one or more sessions with the employees together. Ideally meetings should take place in a neutral environment; preferably ‘off site.’  At the very least, the mediation should be held in private, in a room free from interruptions.  It is also essential that employers are clear as to where mediation fits into their grievance and disciplinary procedures and what happens if either party pulls out or the mediator decides to stop the process. Conversely employees must understand that matters discussed during mediation cannot be repeated outside of the process.

At the end of the process it is advisable for both employees to summarise their agreement in writing and sign it. With their consent, this can be passed on to any relevant line manager or HR manager, as appropriate. The mediator, with the employees’ consent will also send their recommendations for next steps to the person responsible for commissioning the mediation. A follow up meeting can be conducted by the mediator at a later stage, with the agreement of the employees.

Whilst highly effective, mediation is not suitable for all conflict situations. Mediation is inappropriate if one party feels coerced into agreeing to it, they want an allegation of discrimination investigated, there is inequality in how effectively each party can represent their own interests during mediation or the conflict is long standing and the parties have become entrenched in their positions. It will also be ineffective if not properly supported by the employer, for example, in time allocation or provision of an experienced mediator.

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