Mediated Outcomes

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Mediation in Brief

Mediation is used for the resolution of disputes across a wide range of commercial and industry sectors. Mediation skills and expertise are adapted with a view to resolving issues which arise at work both during and after the employment of those directly involved.

 

Which issues can be referred to us for mediation?

  • grievances

  • attendance issues

  • individual performance plans

  • capability concerns

  • some kinds of disciplinary issues

  • redundancy and reorganisation situations

  • working relationship concerns

  • trust and confidence issues

  • severance arrangements

  • employment tribunal claims  

 

Is mediation compulsory?

Usually, nobody can be obligated to participate in a mediation. However, some employers require an employee to consider mediation before submitting a formal grievance or commencing court or employment tribunal proceedings.

It is usual to encourage the use of mediation as an informal alternative process for resolving issues and concerns at work in a professional, speedy and effective manner.

Direct participants are asked for their consent beforehand – which they don’t have to give - and, of course, permit them to withdraw their consent at any time up until a Mediation Resolution Agreement has been signed. 

The benefits of mediation

Many consider that mediation offers a range of benefits when compared to the traditional formal internal processes apart from the external ones such as litigation and arbitration. These benefits include:

  • enabling direct participants to express how they feel about the issues and how they would prefer to resolve them (including solutions which a court or employment tribunal could not order)

  • reducing the time taken to resolve disputes

  • reducing the costs of resolving disputes

  • reducing stress

  • providing a more satisfactory outcome to the dispute

  • keeping the terms of an agreed outcome private and confidential

  • minimising further disputes

  • opening channels of communication

  • preserving or enhancing relationships

  • savings in time and money

  • empowering the parties

Disadvantages of mediation

  • cannot be used where criminal or civil offences are involved

  • unlikely to succeed without direct participant compromise

  • cannot succeed where one or more direct participants need an imposed judgment

 

The mediator’s role

The mediator’s role is to facilitate and explore ways in which an issue or concern at work can be resolved. They do this as an independent impartial neutral.

They neither advise nor seek to impose an outcome on anyone. They are non-judgmental and make no decisions at all in the matter, leaving these solely for the direct participants to make. 

The process is private, confidential and without prejudice to any of the direct participants’ rights. Most mediations are successful but where this is not possible, they are still free to invoke any formal internal or external proceedings if they wish.

Appointing the mediator

The direct participants need to agree the appointment of a mediator acceptable to them all.

Internal mediators should –

  • have had no decision-making role in any of the matters to be covered in the mediation

  • be completely impartial and have nothing to lose or gain by the outcome.

 

External mediators must be independent and impartial. They should –

  • be accredited by a recognised mediation organisation

  • comply with its codes of practice, have a published complaints procedure and

  • carry adequate personal indemnity cover.

 

Pre-mediation discussions

In many instances, the mediator will have a separate pre-mediation discussion with each of the direct participants to -

  • explain the process

  • identify all the material issues

  • ascertain their interests and needs

  • explore any potential alternative resolution options

  • seek to identify any underlying issues

  • identify the participants required

  • ascertain the timeframe

  • agree the mediation format

  • understand the individual outcomes needed

  • agree the mediation terms and conditions

  • ascertain which documents (if any) are needed

  • identify anything else of concern

  • prepare and sign a Mediation Referral Agreement incorporating much of the above

 

The mediation formats

 

The overriding consideration is for all direct participants and any companions to have equal access to the process and, where necessary, reasonable adjustments must be made to facilitate this. One or more of the following formats may be utilised –

  • actual in-person attendance (usually at an agreed neutral location)

  • meetings by video-link on Zoom or MS Teams

  • telephone, Skype, WhatsApp or Email subject to the mediator being satisfied by factors including security

  • where mediations are fully or partly facilitated by us, we can also offer online mediation on either of our safe carbon-neutral or messaging internet platforms.   

 

Subject to availability, most mediations conclude within one day.

 

The mediation

 

Whichever format is used for the mediation, the basic principles are as follows:

  • it is often not necessary for all direct participants to be together during most, if not all, of the mediation

  • discussions and communications generated during a mediation are confidential and privileged (ie they cannot be disclosed in any proceedings either during the process or afterwards unless ordered by law). For this reason, they cannot be recorded

  • if they wish, direct participants may be accompanied during the mediation by one companion of their choice who can take full part in the discussion 

  • the mediator will employ solution focussed techniques to steer direct participants towards agreeing an outcome which they can feel able to accept. An element of compromise and good faith are essential ingredients in making for a successful outcome

  • the mediator passes between the direct participants and explores what might be needed to progress matters. They will have due regard to the individual needs of every direct participant.

  • every direct participant and any companion will have a chance to put forward their point of view as well as listen to what others have to say.

 

Confidentiality

Every direct participant and any companion may make confidential disclosures to the mediator. The only time when a mediator may not be able to keep a disclosure (or any other matter) confidential is where there is danger or injury to life or where a criminal offence might be involved.

Closure

 

Mediations conclude with:

  • a Mediation Resolution Agreement

  • a failure to agree certificate

  • withdrawal by any participant or by the mediator

 

Mediation costs and fees

In most instances, the fees of an external mediator are paid by the employer on the express understanding that this will not in any way detract from the mediator’s neutrality and objectivity.

Also, in most instances, a direct participant will be solely responsible for arranging for any external companion to attend the mediation and for any costs and fees incurred by them for that purpose.

Commercial Mediation Fees

We comply with the Civil Mediation Council's Fixed-Fee Scheme.