What is mediation?

Mediation is an informal process that involves two or more parties in dispute. It aims to bring the disputing parties together and enter into an in depth conversation in an attempt to resolve their differences through open and honest discussion. It is essentially ‘the talking method’ of dispute resolution.

It should not be confused with conciliation, which is used to resolve disputes involving employment rights; or arbitration, which involves an independent arbitrator judging a dispute and imposing a resolution.

When might an employer choose to use mediation?

There are various situations for which mediation would be a useful tool for an employer to use.

The main reason for workplace mediation is when there is conflict between two or more staff members. Conflict can be viewed as a strong term to use, however, conflict can occur as part of everyday life but simply not be recognised as such.

A certain amount of conflict at work can play a positive role if it leads to healthy competition to perform better. However, some conflict can be negative. A simple throwaway comment that was not intended to cause offence, but did; a misunderstanding about ownership of work leading to a missed deadline resulting in parties blaming each other; bitterness about an unsuccessful promotion attempt – these are all occurrences that can create negative conflict.

This can then become exacerbated because colleagues commonly have to spend a significant amount of time with each other, not particularly by their own choice. If a disagreement occurs, colleagues are not in a position to simply remove themselves from the situation and must therefore confront it on a daily basis.

If the conflict is not nipped in the bud at an early stage, it can grow; the colleagues will become entrenched in their own position; and ultimately the conflict can begin to disrupt the wider workplace in terms of performance and wellbeing.

However, these issues cannot be determined by who is right or wrong. It might simply be a personality clash that cannot be eliminated by any of the usual formal procedures that an employer usually adopts to resolve other types of dispute.

Mediation can, however, work alongside other workplace procedures. For example, it is not always necessary to complete a grievance procedure before mediation is used, if mediation will aid the situation. Alternatively, mediation may be suggested in an outcome to a grievance procedure.

It can even be used after tribunal proceedings have been brought and concluded, where the employee remains in the organisation.

What does the mediator do?

The mediator facilitates the process of organising for the ‘parties’ i.e. the employees in dispute, to come together and provides a safe environment in which meaningful conversation between the parties can take place.

Most mediation takes place with two co-mediators.

The key word here is ‘facilitates’. The role of the mediator is to bring the parties together and aid the conversation. They will use special skills to facilitate the conversation and, importantly, allow each party to be heard by the other.

They will adopt active listening and questioning techniques that have two main purposes:

  • To allow the parties to feel ‘listened to’ therefore leading them to feel comfortable in the environment, able to talk freely and feel that their feelings matter;
  • To ensure that the words of either party are being heard by the other.

The second point above may sound strange, but it is common in conflict situations for one individual not to listen to what the other is saying. The mediator will adopt methods intended to enhance the communication between the parties.

The aim of the mediation is for a written agreement or action plan to be formulated by the parties, which covers future behavior enabling them to have an improved working relationship.

What doesn’t the mediator do?

It is not for the mediator to become involved in the dispute; they are present simply to aid the conversation of the parties. They will not:

  • take sides;
  • give an opinion on the dispute;
  • lead the conversation;
  • tell the parties what to do;
  • act as a go-between;
  • suggest a resolution.

The mediator will not attempt to investigate the facts of the dispute. This is not required for their role.

What makes mediation successful?

  • It explores the issues, feelings and concerns of all parties;
  • It allows parties to understand and empathise with the feelings of those they are in conflict with;
  • It gives parties an insight into their own behaviour;
  • It encourages communication.

The 4 overriding principles of mediation

Impartiality:
The mediator will not take sides or judge the parties. This is fundamental to all parties trusting the process and feeling that they are on an equal footing with each other in terms of the mediation process.

Confidentiality:
Parties may speak about emotional and personal issues and therefore must be certain that no topic discussed will be disclosed outside of the process. Parties must sign a confidentiality agreement before the mediation begins, which also extends the principle of confidentiality to the mediator and the sponsor, should parties agree for them to see the written agreement. Employers may, however, be in the situation that they receive no feedback from the mediator of what was discussed during mediation, or the end result.

Voluntary:
The parties must be willing to take part. If a party is forced to be involved, they are less likely to engage fully and this will stunt the effectiveness of the process.

Self-determination:
Any agreement reached is formulated by the parties themselves and not imposed by the mediator.