Mediation at Work: Guide for Employers

Workplace conflict is inevitable in most organisations, and how it is managed will directly influence the outcome – either facilitating resolution in a positive working environment or escalating into wider issues, such as a resignation and a potential tribunal claim.

Where a conflict is disrupting the workplace environment and negatively impacting morale, performance and relationships, employment mediation may be able to offer an informal and constructive approach to resolution.

Mediation is voluntary and confidential. It can help in a wide range of workplace scenarios and circumstances where management or HR efforts have either failed or are not appropriate to resolve the issue, such as ongoing issues between a line manager and team member, or where an employee’s comments have caused offence.

Im this guide for employers, we explain what workplace mediation is, how it works and look at the practical considerations of mediation as a form of dispute resolution.

 

Section A: What is Mediation at Work?

 

As a form of alternative dispute resolution, workplace mediation can be an effective way of addressing conflict at work, helping to resolve disagreements on a confidential basis without the need for more formal proceedings, including employment tribunal complaints.

Mediation involves a neutral, third party facilitating discussions between parties that are in conflict. The objective of mediation is to allow both sides to put forward their side in a way that is constructive and focused on resolving the disagreement.

Mediation can be used at any stage of a dispute or disagreement and attempts to provide a faster solution to workplace conflict compared with other forms of dispute resolution. It also looks beyond the issues to address any underlying causes to find long-term solutions. While one of the advantages of mediation is the flexibility it affords, the flip side is that any mediation agreements are not legally binding.

 

Benefits of Workplace Mediation

 

Where appropriate to use, workplace mediation can be an effective way of helping to repair and maintain professional relationships, by encouraging and empowering those involved to find solutions rather than allocating blame. This can be especially helpful where the employment relationship is continuing. Additionally, workplace mediation can help to open up the lines of communication between the parties to a dispute or disagreement, in this way providing a solid foundation for a more positive working relationship moving forward.

Mediation in the workplace offers several benefits that can significantly improve the working environment. It plays a crucial role in reducing stress for those directly involved in disputes. By addressing conflicts early, mediation helps to minimise confrontation and discord among other staff members, fostering a more harmonious workplace.

The process can enhance overall employee engagement and positively impact workplace culture. It also contributes to reducing incidents of sickness absence related to work-induced stress, which can affect productivity and morale.

Retaining valuable staff is another key advantage, as mediation can prevent employees from leaving due to unresolved conflicts. Furthermore, mediation provides an alternative to more formal procedures such as grievance and disciplinary processes, which can be both time-consuming and stressful. It helps to avoid potential dismissals and the associated complications.

In addition, mediation can prevent complaints from escalating to an employment tribunal, thereby saving time and avoiding the expenses involved in defending such claims. By resolving issues amicably, mediation reduces the likelihood of further disputes and grievances arising, creating a more stable and positive work environment.

 

Section B: When is Workplace Mediation Appropriate?

 

There are various types of conflict for which workplace mediation may be used, although mediation is often best-suited to resolve disagreements due to workplace relationships, rather than legal disputes, such as pay or any issues relating to employee conduct and capability. There are no hard and fast rules, but examples where mediation may be appropriate in the workplace could include communication problems at work, personality clashes at work, or professional relationship breakdowns at work. This could be between an employer and an employee, or a line manager or team leader and a direct report. It could also take place between two or more employees involved in a disagreement.

 

1. When is Workplace Mediation Not Appropriate?

 

Mediation is essentially a way to mend relationships when there is a disagreement at work. This means that it is not usually appropriate for legal or contractual issues such as benefit and pay disputes, nor any disputes around misconduct or poor performance that could potentially lead to an employee’s dismissal.

A pay dispute that cannot otherwise be resolved would usually need to be dealt with by way of formal grievance proceedings, while conduct or capability matters are often best dealt with by way of a formal disciplinary or any designated company capability procedure.

As a voluntary process, workplace mediation must also only be used where the parties to a dispute or disagreement consent to this process. However, simply agreeing to engage in this process may not always be enough, where the parties must also be open and willing to find a workable solution to their dispute for mediation to stand any chance of succeeding.

 

2. Mediation in Grievance & Disciplinary Procedures

 

Mediation should not be used where a formal investigation is required under the relevant grievance or disciplinary procedure, for example in relation to misconduct or harassment allegations or pay-related complaints.

Mediation should also not be used if there are outstanding factual issues to be determined. Mediators are not arbitrators or judges, as such it would not be appropriate for them to decide on matters of fact. Instead, these issues would first need to be dealt with appropriately, typically through investigation, before mediation is considered.

Mediation could also be used once all other internal procedures at work have been completed, with the objective of helping to rebuild relationships following any grievance or disciplinary procedure. This is because the employment mediation process is a relatively informal and flexible process, where this can be tailored to suit the unique needs of the people and circumstances involved, provided they agree to engage in mediation.

 

Section C: How Does Employment Mediation Work?

 

Mediation is a confidential process held by a neutral person, known as the mediator. The mediator is entirely impartial, which means that they will not take sides. They are simply there to help everyone involved find a solution they can all agree on. The mediation process is not about judging who was right or wrong based on past conduct, but is designed to identify ways in which the parties to a dispute can agree on working together in the future.

The format of the mediation should be agreed with the parties in advance. This can be clarified by the mediator during the initial scoping discussions. For example, one party may not wish to be in the same room as the other. Mediation could also take place online or in person. Online mediation has become increasingly common due to the prevalance of remote and hybrid working.

The format of the mediation should also be approproate to any agreed reasonable adjustments that have been requested by a party with a disability recognised under the Equality Act.

There are typically two main stages to mediation, where the mediator will meet with each party separately in stage one, so that they can listen to each perspective, before moving to a joint meeting in stage two, when the parties come together and have a facilitated dialogue. In most models of mediation there is usually some uninterrupted time at the start of the session, when each person will take it in turn to speak and listen. The mediator will then utilise facilitation and conversation management skills to help the parties identify the key issues and talk through them to a mutually acceptable solution that everyone can agree on.

If an agreement can be reached in workplace mediation, this will not be legally binding. This means that if either party breaches this agreement, the non-defaulting party will not have a basis to enforce its terms. However, mediation agreements are made with a moral voluntary commitment which can make them effective in themselves. Equally, a breach of any agreement may then mean that any ongoing dispute will lead to other more formal proceedings, which can act as a powerful incentive to stick to what was agreed.

 

1. Do You Need a Mediator?

 

The person leading the mediation process should be a qualified mediator, who is both neutral and has no conflict of interest relating to the matter being resolved.

Effective mediators are skilled and experienced in ensuring clarity of objectives, guiding the parties through parties while maintaining focus on solving problems, and helping the parties to consider new ways of thinking.

In the absence of anyone skilled or experienced in the organisation, most organisations will engage an external, professional mediator to lead the process.

This can help ensure the integrity and effectiveness of the process. Using an external mediator can also provide further assurance as to the confidential nature of the proceedings.

 

2. Is Mediation Voluntary or Mandatory?

 

Employment mediation is voluntary and all parties involved have to agree to take part willingly.

This means you cannot make it compulsory for an employee to take part in mediation.

Part of the mediator’s role should be to ensure both parties have a clear understanding of what the mediation process is and what the mediator can and cannot do. Typically, this involves having a separate, initial discussion with each party. The employee may decide after this discussion not to proceed with the mediation. Withdrawing their consent to Workplace Mediation means the process will not progress.

Likewise, if a mediator considers there to be any element of obligation being placed on an employee to participate, the mediator may determine the process as being inappropriate.

 

3. Can Employees Bring a Representative to Mediation?

 

This will depend on the circumstances. Generally speaking, mediation is considered to be most effective when it is focused on the people in disagreement working with the mediator directly in an open and honest way and without additional contribution.

However, you should consider any such request and if a party can show good reason why they should be accompanied, it could be deemed unreasonable to deny this. Importantly, if you do agree to allow someone to be accompanied, you will need to inform all other parties of this in advance.

 

4. Possible Outcomes of Mediation

 

The outcome of any mediation process will depend on the disagreement being addressed. Given the flexibility of mediation, there are a number of possible outcomes, including:

 

a. an acknowledgement of each party’s views

b. a commitment from each party involved to change their future behaviour

c. a commitment from each party to regularly review the agreement reached

d. an agreement from the employer to review policies and procedures.

 

Mediation allows for creative solutions, where settlements concluded at workplace mediation can include a variety of non-financial aspects which tribunals have no jurisdiction to order. They may even include an apology from one or both parties involved.

If agreement is reached through mediation, the terms should be set out in writing by the mediator, with both parties signing the document as proof of their agreement and of their commitment to adhere to the terms. Provision should also be made to allow for regular reviews of the situation to ensure both parties are meeting their commitments and that further disagreements do not develop.

 

5. What if Mediation Fails?

 

If the mediation process fails to result in any agreement, the options will depend on the nature of the disagreement. In some circumstances, it may be appropriate to take some time and revisit mediation. Or, it may be appropriate for the issue to be dealt with using the relevant formal procedure. For example, if an employee is complaining of bullying, they could bring a grievance. If the grievance or disciplinary procedure has been exhausted, the complainant could look to bring a claim to the Employment Tribunal.

 

Section E: Best Practice Guidance for Employers

 

Employers should try and resolve any dispute informally first, before thinking about using workplace mediation. If the matter cannot be resolved informally, you may then want to suggest mediation, depending on the nature of the dispute. Mediation can be used at any stage in a dispute, although it is best to start this process as soon as possible, where the earlier the matter is dealt with, the less chance there is of things escalating into a situation where an employee resigns and/or lodges a tribunal complaint.

As workplace mediation is entirely voluntary, parties to a dispute do not need to take part in this process if they choose not to. Still, given its benefits, it is important that the option of workplace mediation is offered to the parties in a positive way, but without obligation.

In broad terms, there are two ways you can introduce mediation to your workplace. You can either use an external mediator who comes to your workplace or set up your own internal mediation scheme by training employees to act as mediators. However, the option you choose should be suitable for your workplace. For example, a larger organisation might invest in its own mediation scheme, while a smaller organisation might use an external mediator, as and when needed. Using an external mediator might be a good option for a smaller organisation, as it can be expensive to set up an internal scheme. It can also be difficult to make sure that employees in a smaller organisation are impartial and available.

For larger organisations, you may even want to consider using a combination of both internal and external mediation, depending on the circumstances. For example, if you have invested in your own internal mediation scheme, you might still use an external mediator if the internal mediator has any conflict of interest in the context of the dispute or is not available quickly enough. An external mediator may also be more appropriate where those involved in potential mediation are senior managers or the issue(s) at the heart of the disagreement involve an especially sensitive situation for some or all of those involved.

Online guidance on how to carry out successful mediation in the workplace — ‘Mediation: an approach to resolving workplace issues’ — can be found on the Acas website. Acas can also advise employers on introducing mediation in the workplace, as well as provide external mediators or train staff in conducting mediation at work, offering a 5-day accredited training course: ‘Certificate in Internal Workplace Mediation’.

 

Section F: Alternatives to Workplace Mediation

 

Mediation is one form of dispute resolution used in the workplace to help avoid the cost and hassle of tribunal claims. Other types of dispute resolution include conciliation and arbitration.

Arbitration is a process by which an independent adjudicator is engaged to look at all of the issues and facts of the dispute so as to make a decision on the matter.

Conciliation is used specifically before a tribunal claim can be made (early conciliation), or after a claim has been made (conciliation).

An employee must tell Acas about a workplace dispute before making a claim to an employment tribunal, where Acas will offer the parties early conciliation at this stage. As with workplace mediation, neither party is obligated to agree to Acas conciliation, but it can help to resolve a dispute without recourse to tribunal proceedings. As an employer, you can also call Acas directly to request talks if you think a dispute with an employee could lead to a tribunal claim. For example, you may decide to contact Acas in the event that workplace mediation is not appropriate for the type of dispute in question. You can contact Acas by telephone on 0300 123 1122, Monday to Friday, between 9am to 5pm.

Unlike workplace mediation, which is usually in person and completed in just one day, Acas conciliation will be done over a period of 6 weeks via telephone, where the conciliator will individually discuss the issues with both sides with a few to reaching an agreement. The service offered by Acas is free, independent and confidential, where the conciliator will:

 

a. explain the conciliation process to each party

b. discuss the issues with both sides independently of each other

c. give an overview of the law

d. discuss how employment tribunals have considered similar cases

e. help both sides explore the strengths and weaknesses of the case

f. discuss possible options without making any recommendations

g. remain independent of the dispute, where they will not take sides or tell the parties what to do, although they can discuss the available options
outline the employment tribunal process

 

If both parties agree to engage in early conciliation and an agreement can be reached, Acas will write up what you agree in a settlement form called a ‘COT3′. Once the parties have agreed to this, the settlement will be legally binding. If a case is settled in early conciliation, the employee will no longer be able to take the matter to the employment tribunal. If, however, an agreement cannot be reached, the employee will be given a certificate with a number on it which they can use to complete Form ET1 if they still decide to make a claim.

 

Section G: Summary

 

With so many distinct personalities in the workplace, it is only natural that, from time-to-time, conflicts arise. If left unresolved, ill-feeling can escalate, potentially leading to more serious grievance and disciplinary matters. Workplace disputes are costly and time-consuming to resolve, and can be detrimental to staff morale and working relationships. This may, in turn, lead to higher levels of absenteeism and employee turnover.

Mediation in the workplace is a way to intervene and resolve disputes at work by guiding parties towards mutually beneficial solutions. Key considerations for employers include:

 

a. ACAS code – While mediation is not a compulsory requirement on employers, organisations should be aware that if an employer unreasonably refuses to instigate a mediation when one is requested, a tribunal can penalise by increasing any award against them by 25%.

 

b. Objectivity – An independent mediator brings none of the politics, history or dynamics of the organisation, offering a wholly objective and neutral stance, which can be appealing to employees particularly where the complaint is against a senior member of staff.

 

c. Internal reluctance – There may be some initial reluctance from management to participate in a mediation, through concern that commissioning an external mediator reflects badly on their management skills or style. But the risks of failing to resolve conflict creates an organisational imperative for resolution and for all options to be considered thoroughly over any individual or personal concerns.

 

d. Informal – The mediation should provide an informal and safe environment to discuss the conflict and seek resolutions, unlike more formal and protracted options such as a grievance.

 

e. Confidentiality – A key benefit of the mediation process for employees in conflict is often that the details of the discussion and the issues raised are treated in confidence and will not be disclosed to HR, management or anyone else within the organisation.

 

f. Practical focus – Mediation should be focused on a practical solution. The output could take the form of a written agreement or action plan looking for example at future behaviours and other solutions that address the sources of conflict and improve the working relationship. The outcome of the mediation will not be legally binding unless a specific legal agreement is drawn up and signed by both parties.

 

 

Section H: Need Assistance?

 

DavidsonMorris’ employment law experts are on hand to advise on all aspects of workplace dispute resolution, including the use of mediation. Working closely with our specialist HR consultants, we provide a comprehensive service for employers ensuring personnel concerns are handled correctly while supporting positive working relations and minimising legal risk.

We also provide specialist, independent mediation support services, allowing employers to benefit from our experience in leading mediations while also removing the risk of perceived bias in workplace disputes. As an independent party, we are entirely objective and without knowledge of internal politics, ensuring neutrality and confidentiality of discussions. Our experts are experienced in helping to overcome disputes by bringing together employees and facilitating an in-depth, constructive and confidential conversation in a safe environment.

For conflicts where mediation won’t be appropriate or effective, we can make recommendations for next steps and alternative options. For help and advice, contact us.

 

Section I: Workplace Mediation FAQs

 

What is employment mediation?

Employment mediation, also referred to as workplace mediation, is a form of alternative dispute resolution that can be used to help settle a dispute at work on mutually agreeable terms, in this way avoiding the need for tribunal proceedings. Mediation in the workplace is a voluntary process that should be led by an impartial third party, meaning they are not involved in the matter and do not take sides. It is often described as an “informal” process because it is less formal than disciplinary or grievance procedures. Nevertheless, to be effective, mediation should still follow a structured approach.

 

Is workplace mediation legally binding?

Workplace mediation is not usually legally binding but, as a voluntary process, the parties are often invested in a positive outcome. This means that the parties, even though not legally bound, will often be willing to abide by their agreement.

Workplace mediation is used to resolve disagreements around working relationships, such as complaints of bullying and harassment, communication problems or personality clashes. It is not designed for things like pay disputes, or issues around conduct or capability.

 

Who pays for workplace mediation?

The cost of any workplace mediation process should be borne by the employer. It would not be appropriate for an employee to be asked or made to contribute to the cost of workplace mediation.

 

How does workplace mediation benefit employees?

Workplace mediation helps reduce stress and conflict for employees involved in disputes. It fosters a more positive work environment by addressing issues constructively, which can lead to improved job satisfaction and engagement. Mediation also helps in preventing escalation of conflicts, which can otherwise result in formal grievance procedures or disciplinary actions.

 

Is mediation confidential?

Yes, mediation is typically confidential. The discussions that occur during mediation are not disclosed outside the session, ensuring that parties can speak openly and honestly. This confidentiality helps in creating a safe space for resolving issues without fear of repercussions.

 

How does the mediation process work?

The mediation process usually begins with an initial meeting where the mediator explains the process and establishes ground rules. Each party then has the opportunity to present their perspective. The mediator facilitates discussions, helps identify common ground, and works with both parties to develop a mutually acceptable resolution. The process is collaborative and focuses on finding solutions rather than assigning blame.

 

What happens if mediation does not resolve the issue?

If mediation does not lead to a resolution, the parties may need to explore other avenues for resolving the dispute, such as formal grievance procedures or legal action. However, many disputes are resolved through mediation, as it encourages open dialogue and problem-solving.

 

Who can request mediation?

Mediation can be requested by any party involved in a dispute, including employees or managers. Often, employers offer mediation as part of their conflict resolution strategy to address issues early and prevent them from escalating.

 

How long does workplace mediation take?

The duration of workplace mediation can vary depending on the complexity of the dispute and the availability of the parties involved. Mediation sessions can range from a few hours to several days, but the process is generally designed to be efficient and resolve issues promptly.

 

Are there any costs associated with workplace mediation?

Costs associated with workplace mediation can vary. Some organisations provide mediation services in-house, while others may engage external mediators, which can involve fees. It is important to check with your employer or the mediator to understand any potential costs.

 

Can mediation be used for all types of workplace disputes?

Mediation is a versatile tool that can be used for various types of workplace disputes, including conflicts between employees, issues between employees and management, and disputes over workplace policies. However, certain issues, such as those involving legal claims or serious misconduct, may require different approaches.

 

What if one party does not want to participate in mediation?

For mediation to be effective, both parties need to be willing to participate. If one party is unwilling to engage in the process, mediation may not proceed. In such cases, other methods of conflict resolution or formal procedures might be necessary to address the issue.

 

Section J: Glossary

 

Term	Definition
Workplace Mediation	A process in which a neutral third party, the mediator, assists employees or management in resolving workplace disputes through facilitated discussion.
Mediator	An impartial individual who facilitates the mediation process, helping parties to communicate effectively and reach a mutually acceptable resolution.
Confidentiality	The principle that all discussions and information shared during mediation are kept private and not disclosed outside the mediation process.
Dispute Resolution	The methods and processes used to address and resolve conflicts or disputes, including mediation, arbitration, and formal grievance procedures.
Grievance Procedure	A formal process within an organisation for addressing employee complaints or disputes, often involving written complaints and investigations.
Disciplinary Procedure	A process for addressing and managing employee behaviour or performance issues, which may lead to disciplinary action if not resolved.
Conflict	A disagreement or clash between parties due to differing interests, values, or opinions, which may lead to disputes in the workplace.
Settlement Agreement	An agreement reached during mediation where both parties agree to certain terms to resolve the dispute and prevent further action.
Facilitated Discussion	A structured conversation led by the mediator to help parties explore issues, express their views, and work towards a resolution.
Resolution	The outcome of the mediation process where parties reach a mutually acceptable solution to their dispute.
Impartiality	The quality of being unbiased and neutral, essential for mediators to ensure fairness and effectiveness in the mediation process.
Voluntary Participation	The principle that mediation is a voluntary process, and all parties must agree to participate in order to engage in mediation.
Mediation Agreement	A written document outlining the terms agreed upon by the parties during mediation, which serves as a record of the resolution.
Conflict of Interest	A situation where the mediator’s impartiality might be compromised due to personal or professional connections with one of the parties involved.

 

 

Section K: Additional Resources

ACAS – Advisory, Conciliation and Arbitration Service
https://www.acas.org.uk/mediation
Provides comprehensive guidance on workplace mediation, conflict resolution, and best practices for employers and employees

 

GOV.UK – Employment Rights and Dispute Resolution
https://www.gov.uk/resolve-workplace-disputes
Offers information on employment rights, including dispute resolution procedures and the role of mediation in the workplace

 

The Law Society – Employment Law Resources
https://www.lawsociety.org.uk/topics/research/employment-law
Access resources and find information on employment law, including workplace mediation and dispute resolution:

 

Chartered Institute of Personnel and Development (CIPD) – Conflict Management
https://www.cipd.co.uk/knowledge/fundamentals/emp-law/conflict-management
Provides insights and guidelines on managing workplace conflict and the role of mediation

 

Mediation UK
https://www.mediationuk.org.uk
A resource for information on mediation services and training, including workplace mediation