Last reviewed 21 June 2016
Inevitably there will be disagreements between employees within the workplace and these need to be resolved as quickly as possible, hopefully with a “win-win” outcome. Mediation is a process that is helpful in many situations, as Val Moore explains.
What is mediation?
It is certainly less formal than grievance and disciplinary procedures. It is flexible and the parties enter into it on a voluntary basis and any agreement is usually morally, rather than legally, binding.
It offers a “safe space” for each side to come together in a confidential manner to explore solutions that are acceptable to both sides — to find a compromise. It is to help both sides understand and empathise with each other’s point of view and understand what emotions are involved. Often differences arise at an emotive level. While emotions may not be “logical”, they can be a big factor in the problem.
Mediation is joint problem solving, it encourages communication, understanding and hopefully the development of skills so that the parties involved can resolve any future difficulties between them.
Who and what is a mediator?
A mediator is someone who is impartial. Mediators are not there to make judgments. They are there to help the parties explore both sides of the problem and help both sides understand the other’s point of view by encouraging discussion.
Impartiality is important. Within a provision, if the provision is large enough, someone within the organisation may be suitable. If it has a board of directors, or has a management committee, these people may be sufficiently “removed” from the day-to-day operation of the organisation to undertake the role and not “intimate” the parties. They will need training, and perhaps training one or two individuals to perform this task — before any problems arise — should be seriously considered.
Alternatively, an external mediator could be brought in to manage the process.
What happens during mediation?
First, the mediator will meet separately with both parties so that he or she can understand both sides of the problem and what both parties want from the process.
All parties involved will then come together and the mediator will help them by letting both sides give their version of the situation while the other parties listen to what is being said. It’s then discussion time — without (hopefully) the debates getting out of hand, personal, or vindictive. The mediator will be helping the parties to explore common ground, compromise and come to a mutually agreeable conclusion.
At the end of the meeting the mediator will provide a copy of the agreement (part of that agreement may possibly be further meetings if the issue remains unresolved at this point), and the parties’ responsibilities to implement the agreement should be agreed.
If agreement cannot be reached, and other procedures (eg a grievance procedure) is invoked, anything said during a mediation meeting cannot be used in any other proceedings.
It is not usually acceptable that the parties are represented, or accompanied by, a colleague or a trade union official as in a situation where the proceedings are more formal (eg disciplinary procedures). The objective of mediation is to allow an open and honest discussion so that there is a better chance that the parties involved can resolve their differences.
All discussions are confidential — disclosure to others (ie colleagues, line managers) can only take place if all parties agree to disclosure. There may be exceptions where there is a child protection issue or an illegal act involved.
When is mediation a suitable tool?
Mediation is often most effective in the early stages of any disagreement, before people become entrenched in their positions. It can, however, be used at any time during disputes. Some organisations write into their grievance and disciplinary procedures that mediation is the first step offered in the proceedings. Others will allow such procedures to be suspended if mediation could be the best method of resolving the issue.
Mediation can be used to resolve conflict among colleagues of similar seniority or between line managers and staff or between groups of staff.
It is also a very useful tool to rebuild relationships after a formal dispute has been resolved, because, although the dispute has been formally resolved, it can often leave underlying tensions.
It can be used in a whole range of work situations. Breakdown of staff relationships; personality clashes; problems with communication; and in cases of bullying or other forms of harassment.
It is for the mediator to assess whether a situation is suitable for mediation.
Mediation cannot be imposed
Mediation is not the solution to all problems. Some parties may not wish to take part and it is a system that requires all parties to take part voluntarily because they genuinely wish to sort out their differences and seek a “win-win” situation. Some situations (eg where it is obviously a disciplinary matter) are not suitable for mediation.
The earlier the mediation occurs, the more likelihood of success there will be and the quicker good working relationships can be re-established.
People who have been in dispute for longer periods find it more difficult to change their entrenched views, but that does not mean that mediation can only be used at certain stages in the proceedings.
The good manager
A good manager will not assume that mediation has resolved all matters and that those involved are all friendly and co-operative with each other. It may be necessary to discuss the need for a further programme of mediation if tensions appear to be surfacing again.
Acas and early conciliation
Acas has a statutory duty to offer a free early conciliation programme before any employee can lodge an employment tribunal claim. This provides a proactive approach and it has been shown that early intervention before a tribunal claim has been lodged allows for discussion before both sides are entrenched in their positions.
The programme of conciliation is exactly the same as mediation, but in this instance any agreement reached is legally binding.
Acas’s Advisory Booklet — Managing Conflict at Work (2014)