Workplace & Employment Mediation Solution

Introduction

When referring to workplace related mediation we use the term “workplace mediation” when there is still a working relationship between the parties at the start of the mediation and the term “employment mediation” when the employment relationship has ceased, e.g. an employee has resigned or been dismissed (including when an Employment Tribunal hearing has been scheduled). Workplace related mediation can also start as a workplace matter but end as an employment mediation because those involved decide that rather than trying to agree working arrangements it would be better for all concerned to agreeing severance arrangements.

Typical workplace issues include harassment, bullying, discrimination and impaired performance that are being addressed by the employer’s grievance procedure, harassment investigations, severance negotiations and the like. The typical consequences are stress, sickness, a breakdown of trust, divisions within/between teams, communication problems, low morale, and management “drag”.

Why things go wrong

Most employers have procedures for handling workplace issues such as grievances, harassment and severance, but no matter how well established their HR management arrangements are, things still go wrong so perhaps it is worth taking a look at some of the reasons why.

• Individuality: The way in which individuals approach the handling of problems and other people is often based as much on personality as on processes and procedures. As a result, when under pressure people do not always remain as sensitive to the feelings and culture of others as they might otherwise. Also, people usually expect to adopt a neutral culture in their workplace and to behave as they wish outside it, but problems can quickly arise if some aspects of employees’ private lives begins to intrude unduly on the established workplace culture.
• Change: All organisations undergo evolutionary development and if the changes required are not being identified accurately and cascaded effectively, it can lead to a mis-match in expectations. Job descriptions and performance management plans may no longer reflect what people either are doing or someone else expects them to be doing and new processes and procedures may change the ‘turf’, especially in multi-disciplinary teams, leading to misplaced expectations of who is responsible for doing what – or generate reluctance to adopt the changes due to disagreement, concerns about status, etc.
• Objective and Subjective factors: Objective factors may include interpretation of contract terms resulting in ‘mission creep’ and/or ‘mission seep’; performance criteria and the continued relevance of targets, outputs and outcomes; reporting requirements especially via a seemingly incoherent chain; insistence on adherence to published roles and responsibilities versus the demand for flexibility; dependence on third party input – “I can’t do my job because they didn’t do theirs”. Subjective factors may include management style; lack or style of communication; different perceptions/ interpretation of requirements and differing expectations of behaviour, accountabilities, etc.
• Costs: Then there are the tangible and intangible costs concerned, including those to the efficient operation of the organisation; to management time sorting out problems; to the quality of life from the levels of stress, fear and frustration for those concerned; to outcomes for the User community, e.g. customers, patients, etc.; to associated third parties, e.g. colleagues taking up the slack; and to budgets.

Why mediation?

In workplace and employment disputes people’s behaviour is usually issue and whilst an Employment Tribunal can apply the law to award or dismiss a claim, the judgement will not necessarily address or resolve the underlying problem of whether inter-personal relationships can be restored such that there is mutual respect between individuals at work and no contra-behaviour outside it either.

For most disputes a successful mediation outcome is defined less by ‘who won’ than by whether people can encounter each in future without hackles rising, or one side feeling diminished by the other, both at work and in the street. Also, in close-knit teams or small organisations, it may be that one or more of the participants simply want to agree arrangements that provide sufficient time for them to find another slot in the organisation or a job elsewhere.

Starting mediation and the presence of a neutral mediator, or even just the prospect of it, can influence behaviour. Those involved in work-related disputes, both the individuals most directly concerned but not infrequently their management team as well, are often embarrassed and uncomfortable with at least some part of their performance, but may not be prepared to admit to or confront it. However, people are usually much more prepared to open up when engaged with a neutral and independent mediator within the protection of mediation’s provision for privacy, confidentiality and without prejudice discussion.

Mediation focuses on the people concerned to identify and addresses the root cause of the problem, with any legal and/or TU representatives adopting a creative rather than adversarial role. The mediation process offers a less formal and much quicker approach than ACAS Conciliation or Tribunal proceedings, making it very cost-effective and the Courts strongly encourage its use before resorting to litigation.

Mediation is essentially a negotiation process between parties, with a helping hand of a neutral facilitator, to try to reach an agreement on the best possible outcome for all concerned. It has been found to be effective because:

1. It lets those concerned focus on their issues without being distracted or overwhelmed by complicated and lengthy legal procedures. At court, the judge has the ultimate authority to decide on your issues and you might feel that you are not effectively participating in the process, not in charge of how your matters are being decided or simply finding it difficult to understand the whole picture due to the unfamiliar nature of the formal legal process and possibly also because of the involvement of various other professionals. In mediation, power remains with those in dispute, who shape their own solution facilitated by their neutral mediator.
2. Going to court can be very expensive. As the cost of mediation is either paid by the employer or shared between those in dispute, it is usually far more cost-effective. Also, going to mediation first, you can reduce the time and costs of the court proceedings even if you do not get a full settlement as any outstanding issues will have been aired and narrowed down so that the court proceedings can be managed efficiently and cost effectively.
3. As mediation focuses on enabling those in dispute to reach an agreement voluntarily, it is conducted in a non-hostile atmosphere that encourages cooperation in order to maximise the benefit of all concerned. This is the ideal way to resolve workplace and employment issues as they need the employer’s cooperation to make solution effective.
4. Parties are given the opportunity to identify their ideal outcomes as well as their fears and concerns but, crucially, in a controlled environment so as not to jeopardise the chance of successful negotiation. This is because the parties can raise issues with the mediator who can then take on the role of a skilled and tactful “go-between”, acting equally for both parties without undermining either’s position or interest. The mediator is a skilful facilitator who helps both sides stay on course in their negotiation whilst taking the heat out of emotionally charged arguments.
5. Having listened to all the issues from both sides, the mediator can help with the development of possible solutions that accommodate participant’s wishes, ideas, fears and concerns making the outcome acceptable to all parties. However, the mediator only makes suggestions or outlines possible options to help the parties to overcome or break-through any stumbling blocks. The mediator will not seek to impose any solution or to force parties to reach an agreement and nor can the mediator provide any legal advice.

The process has been shown to be effective and its use can avoid any further deterioration in relationships amongst those concerned. The process is private, protected by confidentiality and all exchanges are without prejudice, which means that all offers made in the mediation are deemed to be for the purpose of securing agreement in the mediation only and cannot, therefore, be referred to or adduced in support of any claim thereafter, other than those which is recorded in any settlement agreement.

The Process

The procedure to initiate Mediation

Referral

A proposal to use mediation can come from the employer, any affected employee, TU representatives and legal representatives, but as the process is voluntary, all those concerned must be willing to participate in it. You can approach us by telephone, email or by completing our online referral form, which is straight forward and gives us a brief overview of the problem and the contact details of those concerned so that we can contact them to see whether they agree to mediation.

You can also contact us to ask for advice before deciding whether to use mediation to try and resolve your dispute. We do not provide legal advice, only advice on the use of mediation, which is free of charge.

Mediation can be used on receipt of a complaint or in response to an occurrence once sufficient is known to indicate that the process would be justified and have a reasonable prospect of success. It can also be used later on, after an initial investigation or even immediately before referral to an Employment Tribunal.

Before Mediation

On receipt of a referral asking for mediation, we will contact all concerned to see whether they agree to participate. If so, the assigned mediator will then gather information on the context of the dispute from the management and all disputants concerned, either by face to face interviews, telephone discussions or email exchanges.

Quite often, the mediator is provided with some background papers at this stage, to help them to understand the issues and put things in context. These papers may include job descriptions, performance management records, policies, processes and procedures, and correspondence, including by email, that reflect the development and/or escalation of the dispute.

Based on the information gathered at this stage, the mediator will develop a strategy for handling the mediation and discuss it with the participants to obtain their agreement to the process to be used. Different arrangements may be appropriate for a dispute between two individuals than those affecting a small group or even a large, dispersed multi-discipline team. The mediator will also establish whether it seems likely that higher management may need to be involved and secure their agreement to participate if/as required. The mediator will usually also contact any advisers on each side to introduce themselves.

During these initial contacts, it is important for the participants to differentiate between what is confidential and to be safeguarded by the mediator and what can be shared by the mediator with the other side. The mediator will not communicate any confidential information to any other party unless specifically authorised to do so.

Mediation is above all a negotiation. In any negotiation participants need to persuade the other side of the strength of their case so that they are inclined to settle on terms favourable to you. Participants and any advisers should therefore be prepared to produce whatever is necessary to persuade the other side of the strength of their case, bearing in mind that if they cannot persuade the other side of it, then they may have to settle on less favourable terms than they would like.

Mediation Session(s)

After the initial ‘information gathering’ work, the mediation will usually move into a face-to-face session or sessions. The parties usually arrive some fifteen to thirty minutes before the mediation so that the mediator can greet them separately and arranges for anyone who has not yet already done so to sign the mediation agreement.

The mediator will then spend a little time with each party separately to see how they stand and to discuss any concerns about how best to proceed. At this initial meeting, the mediator will clarify that all parties will have authority to settle the dispute at the mediation.

There may then be a joint meeting if the mediator considers it appropriate and if the parties agree. This is the most formal part of the process. The mediator invites all present to introduce themselves and then sets out the ground rules. The essential ground rules are:-

• The mediator is completely neutral.
• The mediator will not impose a solution – it is for the parties to reach agreement if they wish. Nor will the mediator give any evaluation or judgement.
• Attendance at the mediation is voluntary – parties are free to leave.
• The mediation is without prejudice to any court proceedings, meaning that anything said or offered in mediation cannot be referred to in any subsequent court proceedings. Also, of course, if there is a settlement at mediation any court proceedings can be terminated by consent.
• The process is confidential, so that neither party may repeat outside the mediation anything said within it, which remains confidential.
• Any private sessions between the mediator and a party are confidential, so that the mediator will not repeat anything of a confidential nature to any other party unless authorised to do so.

Each party is invited by the mediator to state their case uninterrupted, taking up to about ten minutes. It is often preferable for the parties themselves to do this, but they may choose to ask their advisers to help. The mediator will then facilitate exchanges between the participants so long as they remain productive.

After that the mediator usually sees each side separately again. There is no hard and fast rule about how mediation is conducted. The mediator aims to establish a good relationship with each side by listening to what they say and seeking to understand the dispute from their point of view. The mediator can then assist the parties to negotiate, either by further separate meetings or by bringing the parties together if appropriate.

Mediation is not always easy – it can be challenging and uncomfortable. It is also common for parties to feel part way through the mediation that they are wasting their time, that the other side are not prepared to give anything at all and that they might as well leave. Mediators are familiar with this development and will encourage both sides to persevere with the process as it is usually possible to work through the obstacles with the mediator’s assistance and arrive at a deal.

Sometimes, agreement has not been reached by the end of a mediation session because it has become apparent that further work and exchange of information is needed. The mediator will establish whether or not all concerned agree to continue the process and if so, will seek agreement to the account of the time needed to complete such work and a date and time for the next session.

After Mediation

If agreement can be reached, it will normally be put into writing and signed there and then. Subject to there being the appropriate authority, especially if setting a precedent, the components of a settlement may include:

• Non-financial elements, including: an apology; the acceptance of an appeal and need for changes to a job description, performance management plan, report, etc.; re-location; policy changes; re-ordered workflow priorities; a public clarification; flexible working; holiday arrangements; etc.
• Reinstatement, acknowledgement of ‘entitlements’, equalisation, adjusted hours of work, etc.
• Remuneration package adjustment including taxable benefits and salary sacrifice schemes.
• Charters, in which the Parties draw up an Agreement setting out their solution and/or the measures each will take to resolve the dispute and prevent its reoccurrence, including arrangements for ongoing review and for handling breaches early and constructively as they arise. Charters normally include a third (neutral) party at a higher level to whom any persistent breaches of the charter’s provisions can be reported and who is able to initiate disciplinary action if merited.
• Pinpoint contracts within contracts, changes to contracts or severance arrangements.
• Severance arrangements, including those for: any compensation, pensions, share options, Director’s loans, health insurance, car and fuel allowances, laptops, mobile telephones, etc.

Fees

Complaint Investigation Service

For organisations that do not have their own internal Complaint Investigation capability, or where a Complainant has lost trust in the internal processes of their employer and wants an external investigation, GLEAMED can arrange the service for you. We pass these referrals to one of our mediators who is also an HR professional and will carry out the work quite independently of GLEAMED so as to avoid any conflict of interest that would otherwise rule us out if a mediation is subsequently required.

Referral Form

Please follow this link to fill out our short referral form.
You are under no obligation to use GLEAMED but it would help us to understand your requirements.

Greater London and East Anglia Mediation is a Regional Mediation Provider covering Norfolk, Suffolk, Essex, and the adjacent London Boroughs, offering Civil, Commercial, Family, Workplace and Community mediation services.