What is Employment Mediation?
What Is Mediation in the Workplace?
Simply put, mediation is a form of alternative dispute resolution (ADR). This poses another question, “to what is it an alternative?” For the purposes of this article, and indeed generally when considering ADR, it is an alternative to going to court to resolve the dispute. This article refers to mediation as it is used in employment disputes, but it is not a form of ADR which is exclusive to employment situations, it can be used in other forms of law, like Family Mediation and Dispute Resolution, amongst others.
How Does Mediation Work?
- Mediation involves the parties to the dispute, that is the employee (or claimant) and the employer (or respondent) and a neutral third-party, who acts as the mediator.
All of them will meet, hopefully in a neutral space (so not the employer’s offices, for example), and the mediator will act as an intermediary between the parties to the dispute. That means that the mediator will listen to what the employee has to say and possibly ask questions to really understand the issues. They will then talk to the employer to hear their side and ask similar questions to understand their issues.
Generally, beyond the first portion of the mediation session where introductions are made, the parties will be separated. This means that the mediator will use shuttle diplomacy to convey information, questions, and offers between the parties with their permission.
The mediator should not take sides, and they should not advise either party on what their rights are, how the dispute should be resolved, or how strong or weak their respective positions might be. The mediator may play devil’s advocate and test the position each party is taking, but they will not put any pressure on either party to make, accept or refuse any offers.
- The aim of mediation is to resolve the dispute.
The benefit of mediation is that the resolution can take any form the parties feel is appropriate since they retain complete control over the dispute.
When Can Mediation Be Used?
Mediation can be used at any stage in an employment dispute. It could be used after a grievance has been raised, before a claim has been issued, or after a claim has been issued. However, to give the mediation the best chance of success, the parties should ensure that they are entering the mediation with the benefit of clearly defined issues and an exchange of relevant information and documents. This should, hopefully, avoid or minimise the number of factual disputes between the parties, which can unfortunately derail an otherwise promising mediation.
What Forms Can Mediation Take?
Within the employment sphere, mediation will generally be encountered in three different ways: private mediation, early conciliation, and judicial mediation:
Private mediation
Private mediation will usually occur while the employment relationship is intact as a way of resolving a dispute before the relationship becomes irreparable. As with all forms of mediation, it will involve a representative of the employer, the employee and their representative (if they choose or are permitted to instruct one), and a professional mediator.
Early conciliation
Early conciliation is a mandatory part of the Employment Tribunal process, or at least, submitting the form is. If the employee chooses to proceed with Early Conciliation, a conciliator will be appointed by Acas to act as the mediator between the employee and the employer. The process is usually conducted via telephone calls, but it can be done in writing. The goal of early conciliation is to resolve any claims, where possible, before it becomes necessary to issue them to the Employment Tribunal.
Judicial mediation
Judicial mediation is a service offered by the Employment Tribunal for cases which it deems suitable. Usually, these are for the more complicated, higher value cases as they tend to take up more of the Employment Tribunal’s time in preliminary hearings and final hearings. At the judicial mediation hearing, an Employment Judge will act as the mediator to help the parties resolve their case privately. Judicial mediation is only possible after the case has been issued.
What Are the Benefits of Mediation?
Primarily, the benefits of mediation become apparent when you consider its alternative (or the thing to which it is the alternative), i.e., a tribunal hearing. With this in mind, the benefits are in relation to costs, stress, privacy, and freedom.
Costs of Mediation
The earlier mediation takes place, the greater the potential for costs savings by each party. Anybody who has been involved in an employment tribunal case will know that they can be very expensive to bring to conclusion. Even where mediation takes place close to the case’s final hearing, the parties stand to save at least their barrister’s or other nominated representative’s fee for attending the hearing, which can amount to thousands of pounds.
Stress
Bringing an employment tribunal case can be not only financially expensive but emotionally expensive, too.
Due to the volume of employment cases that are issued every day and a backlog that has been exacerbated by the pandemic, it realistic to expect that a case will not be heard by an Employment Judge at a final hearing until approximately 12 months after it has been issued. This wait is even longer for complex discrimination cases, which are incidentally the kinds of cases more likely to be suitable for judicial mediation, as above.
The earlier the case can be mediated, the better, but even a case that is mediated relatively late can still spare the stress of attending a final hearing, where witnesses (including claimants) can expect to spend a full day or multiple days in a formal hearing, cross-examined on their own evidence, and confronted with the evidence of the other side’s witnesses, which is unlikely to be pleasant to hear.
Privacy
As a starting point, all Employment Tribunal judgments are published and are available online, either via the Government’s website or through a simple Google search if you know the names of one of the parties. Therefore, a prospective employer could Google your name as part of their routine vetting process for an employee’s job application, and one of the first results could be the tribunal’s judgment in that employee’s claim against her former employer.
Nonetheless, privacy is likely to be more beneficial for employers, whose reputation is usually more valuable than an employee’s, but it is not something that should be automatically overlooked by claimants. Even where the employee is vindicated and succeeds in all of their claims, it is quite likely that no stone will be left unturned by either the Employment Judge or the employer, which can lead to the inclusion in the final judgment of some information which the employee would prefer not to publicise. As above, this sensitive information could then be read by anyone.
Mediation offers both parties the opportunity to resolve the dispute without making public any of the details of that dispute.
In fact, most settlements will require both parties to keep all those details strictly confidential (with some limited exceptions). There are positives and negatives to this, which each party must weigh-up before considering whether mediation is the right choice, but at least mediation can give the parties a choice as to whether to make any details public or the extent to which they must be kept confidential. This is not the case with the employment tribunal, where all details will be made public as a matter of course (subject to the tribunal’s discretion to conduct a hearing in private).
Freedom
As I hinted at above, mediation gives the parties to a dispute a choice about whether they wish to keep the circumstances of that dispute private. The same can be said for everything that forms part of the settlement agreement, if the mediation is successful.
As the settlement agreement is a contract between the parties, it can pretty much include anything, within reason. For example, an employer could commit itself to engaging with sensitivity or diversity training, or, more commonly, the parties could agree a reference that the employer will provide to prospective employers.
This freedom is in contrast to the kinds of remedy which the employment tribunal is able to provide. While reinstatement, re-engagement, and recommendations are all options, compensation is by far the most common result of a successful claim. The employment tribunal does not have jurisdiction, for example, to demand that the employer provides a reference for the employee.
When is Mediation Not Appropriate?
Although mediation has its benefits, it will not always be the most sensible way for the dispute to be resolved. Primarily, it depends on the attitude of both parties.
For mediation to be successful, both parties must be willing to compromise. If the employee or the employer is firmly entrenched in their position and is not willing to budge, no amount of mediation will change that.
This is also the case where one party feels very strongly about the principles underpinning the dispute, which they may want an employment judge to determine. Although mediation has many benefits, it does not provide a real alternative to a judge’s determination of the facts and legal issues in a case.
What Should Employees Expect from Mediation?
As above, a willingness to compromise is fundamental to a successful mediation, so employees should not expect to achieve an amount of compensation equivalent to the maximum value of their case. Employees could consider the non-financial benefits of mediation, as listed above, along with the costs savings that mediation can offer. These could be deducted from the maximum value of their case to help the employee arrive at a starting point.
Realistically, employees should also not expect an admission of liability or an apology. Employers may be willing to offer so-called statements of regret, but that will usually be the extent of any contrition.
Procedurally, employees should expect (and hopefully experience) a relaxed and relatively informal process, which should help them to feel at ease and make rational, considered decisions. Part of this comes from the control which the employee has over the process, in that they are under no obligation to proceed with it, and they are free to accept or refuse any offers that are made.
Mediation is one of a number of ways to tackle workplace disputes and the right course of action for your own situation may be different. Contact Us and speak to one of our experienced employment lawyers, we'll call you straight back.
Vaishali Thakerar, Director, Employment Solicitor
Lawson West Solicitors, Leicester
