Introduction
Mediation is a strictly confidential process that involves two or more parties in dispute. It aims to bring the disputing parties together and enter into negotiations to reach a mutually agreeable resolution 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.
The Organisation will engage an independent third-party mediator to conduct the process in an objective and impartial way. The mediator will not find a resolution for the parties but will create a framework for the parties to find it themselves. Engagement with mediation is voluntary and, as such, will only take place where all parties agree to it and also agree to abide by the outcome.
[Optional, where applicable]
The Organisation has secured the agreement of trade unions in the implementation of this policy.
This policy on mediation does not form part of the contractual terms and conditions of employment.
Use of mediation
Mediation may be suggested as an alternative dispute resolution method in circumstances where the Organisation reasonably deems that, without it, the dispute may lead to legal proceedings or otherwise prove costly or disruptive to the business.
The nature of mediation means that the outcome of the process may differ greatly in each individual circumstance depending on the reasons for its suggested use and the individuals involved. There are various circumstances which may lead to the suggestion of mediation and they will generally be framed as those which are not suitable for management through the Organisation’s disciplinary or grievance procedures. Mediation is not to be used as a substitute for the proper use of the disciplinary or grievance procedure. However, it may be used:
- during a suspension in the disciplinary or grievance procedures, with the agreement of all parties, if there is a genuine belief that mediation may bring about a more satisfactory outcome than would be reached using the disciplinary or grievance procedures. Should mediation fail to being about a satisfactory outcome, the Organisation reserves the right to reinstate the disciplinary or grievance procedure as appropriate
- subsequent to the outcome of the disciplinary or grievance procedure.
Furthermore, the use of mediation will be at the Organisation’s sole discretion for any matter deemed appropriate by the Organisation. Using mediation as a way to rebuild relationships may lead to its suggestion after employment tribunal proceedings where the employee involved remains with the Organisation.
The main reason for workplace mediation is when there is conflict between two or more staff members. 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 or a misunderstanding about ownership of work leading to a missed deadline resulting in parties blaming each other are examples of events that can create negative conflict.
If the conflict is not dealt with 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 disputes.
Parties will not be asked to take part in mediation in the following circumstances:
- where allegations of discrimination, bullying or harassment have been made
- where an employee has acted in a way which breaches Organisation rules, whether it be deemed as misconduct or gross misconduct
- where it is alleged that a crime has taken place.
In these situations, the Organisation’s disciplinary or grievance procedure will be implemented.
Appointment of a mediator
In the first instance, [enter organisation name] will seek to appoint a mediator from within the Organisation who holds relevant accreditation to conduct workplace mediations. Should an internal mediator not be available, or for any other reason the Organisation deems appropriate, an external mediator may be engaged.
The operation of the mediation process will be handed to the chosen mediator who will make the necessary arrangements for the mediation to take place, including agreeing convenient dates with the parties. Failure of the parties to agree on a convenient date may result in the discontinuation of the process. The mediation will normally take place on Organisation premises unless the circumstances dictate that a more appropriate location off site is to be found. The Organisation will meet any costs incurred by the engagement of a mediator; however, this does not include any costs or expenses incurred by the employees, eg travel to an external location.
Mediation process agreement
The terms of reference for the mediation process will be included in a mediation process agreement which all parties are required to sign before the mediation begins. This agreement will give direction as to the steps to be taken if the mediation is not successful in bringing about a mutually satisfactory resolution.
A legally binding settlement agreement will be signed by the parties in the event of a successful mediation.
The agreement will also cover the following, which must be expressly agreed by the parties before proceeding with the mediation:
- for the purposes of disclosure during any legal proceedings which may arise, all communications between the parties at any point in the mediation process whether before, during or after, shall be on a “without prejudice” basis and privilege shall apply
- the parties involved in the mediation will not be legally bound by the mediation agreement or any negotiated settlement unless it is agreed by, or on behalf of, all relevant parties and is placed in writing
- the mediator will not be relied upon in any capacity in respect of any subsequent legal proceedings arising from the mediation. Specifically, they will not be called on to appear as a witness or an expert, nor be called upon to provide any written evidence to be used in any subsequent legal proceedings which may arise related to the dispute in question, the mediation process
- the mediator is free from liability for any acts or omission relating to the provision of their mediation services to [enter organisation name].
The mediation process
The mediator will:
- require both parties to sign a confidentiality agreement expressly stating that no content of discussions/negotiations are to be discussed with anyone outside of the mediation process
- invite the parties to submit written submissions that will be given to each other as well as the mediator
- meet with the employees — the mediator may choose to meet individually with both employees before a joint meeting is held, or begin the process with a joint meeting
- hold further meetings with the employees if agreement cannot be reached in one meeting, or if follow up meetings are deemed beneficial
- make suggestions to the parties on how a satisfactory resolution may be achieved but will not impose a resolution. Employees must voluntarily agree to any resolution
- not disclose to any person outside of the mediation process the content of any discussions/negotiations.
Employees may utilise up to three advisers each to provide negotiation assistance to them, however, strictly only one adviser may attend the mediation meeting with each employee to provide direct assistance. The adviser who attends the meeting with the employee may be a trade union official. All advisers/companions must sign confidentiality agreements.