How does mediation work?
Not only is mediation usually more cost effective but it also offers the potential for far more flexible solutions than would be available through litigation. The value of mediation is also recognised in the ACAS Code of Practice on discipline and grievance which actively encourages the parties to mediate and the introduction of Judicial Mediation in 2009 through the Employment Tribunal service.
Mediation is a form of assisted negotiation in which a neutral third party (the mediator) acts as a facilitator to the parties in their attempts to reach a resolution of the dispute. There is no formal structure and much depends on the wishes of the parties, the nature of the dispute and the style of mediator. Both parties must agree to mediate and the costs are usually shared – this helps to preserve the impartiality of the mediator. Parties can withdraw from the process at any time.
The mediator does not decide the case and the resolution is not imposed on the parties. Lawyers can and often do attend mediations and have an important role to play. They can assist with the exchange of information and opinion on fact, evidence and law, support their clients in negotiations, advise on the implications of settlement and draw up a settlement agreement.
The parties will be asked to sign a Mediation Agreement at the beginning which usually records that both parties wish to make an attempt in good faith to settle their dispute as well as practical details, the legal status and effect of the mediation and the confidentiality and without prejudice status of the negotiations. The parties are also required to exchange statements before the mediation, setting out their position in order to assist the mediator and the other side in identifying the matters in dispute and the issues where there may be agreement. Key documents are also usually sent to the mediator in advance. Although there is no formal structure, the most common format is to have an opening session attended by everyone which gives each party to set out their views followed by private sessions with the mediator shuttling between the parties.
Most mediations last for one day although there is an increasing trend to have a 'time limited' mediation, for example 4 hours in total.
Why mediate?
Mediation has a number of key advantages over litigation, including speed, economy, certainty, confidentiality and informality. It also represents a means of exploring options that a court would not consider, devising solutions that a court could not impose and rescuing valued relationships for the future. It can also open or unblock communication channels and help more quickly identify and isolate key interests and concerns of the parties.
The process allows the parties to a dispute to retain control of the outcome and to seek an acceptable solution for themselves. Unlike the highly structured litigation system, mediation offers a greater degree of flexibility throughout the process enabling a range creative solutions. In practice it is often symbolic gestures, such as an apology, that are important in clinching a deal.
As with any process, there is a risk that one party may not be engaging in good faith. The key disadvantages include the risk that it will be used as a means of extracting information with no intention of settlement; if the mediation goes badly the parties’ positions may become more entrenched and if unsuccessful, the overall costs will be increased. Therefore, knowing when to mediate is an essential skill in implementing any conflict management strategy.
When to mediate
Mediation can take place at any time, irrespective of whether or not proceedings have been issued or at what stage proceedings may have reached.
It is an essential pre-requisite that all parties participate in good faith and have appropriate authority to agree to a settlement. It will not be suitable unless all parties are willing to make some form of compromise. If an employer simply wants an employee to withdraw a claim or is only prepared to make a nuisance payment, then it is unlikely to be successful. If an employer wants to litigate a case because a point of principle is at stake then litigation is the better option.
Mediation may not be appropriate if the employee is unrepresented as he/she may lack self confidence and trust in their own judgement to sign up to a voluntary settlement agreement. Similarly it is unlikely to succeed if the employee is too mentally or emotionally unstable to engage in the process.
In practice, cases where mediation is the sensible option are where previous negotiations have failed because, for example, the parties are “miles apart”, emotions are getting in the way, one party does not understand the other’s case or the other side’s representative is blocking settlement.
Consideration should also be given to the best time to propose the mediation. In practice, if significant costs can be saved, the parties are ready to settle or one party is on the front or back foot, this is likely to be a good time to suggest mediation.
Finding & choosing a mediator
The best way of finding a mediator is either by recommendation or through the Civil Mediation Council. This organisation is supported by BIS and its website gives a list of registered employment and workplace mediation providers. One of the leading ADR (alternative dispute resolution) organisations in the UK is CEDR (Centre for Effective Dispute Resolution) and there are many others offering excellent services.
Most mediators are divided into two types: evaluators or facilitators and the appropriate style will depend on the nature of the case and parties involved. Evaluators will be directive, will assess the strengths and weakness of the case, will give an opinion on the merits, be prepared to make recommendations and put pressure on the parties to accept the proposals made.
Facilitators, on the other hand, will promote communication, be less concerned with the legal merits, refrain from expressing opinions on merits, encourage the parties to consider underlying interests and help the parties develop their own proposals.
Using mediation to find solutions
The importance and value of mediation in workplace disputes cannot be underestimated. It has a high success rate and even if settlement is not reached at the mediation itself, it is often reached soon after because the issues have been clarified and the parties have a better understanding of each other’s position.
It benefits both parties by offering wide scope for finding creative solutions which will enable them to continue their relationship, is private, gives the parties control of the outcome and is quick and cost effective.