When Can You Use Mediation

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The role of the mediator is to help parties reach a solution to their problem and to arrive at an outcome that both parties are happy to accept. Mediators avoid taking sides, making judgements or giving guidance. They are simply responsible for developing effective communications and building consensus between the parties. The focus of a mediation meeting is to reach a common sense settlement agreeable to both parties in a case.

For a mediator to be successful he or she must possess a wide range of skills. One of the most important, but perhaps least appreciated, is the ability to actively listen to what a party is saying and to note what the party is not saying. All too often we hear what we expect someone to say rather than what is actually said. It is a fundamental principle that mediators must not prejudge the case nor impose their own prejudices on the parties. Furthermore, a mediator has to be able to tune into “where the speaker is coming from” and read the “sub text” or hidden messages given out by the parties.

When Can You Use Mediation

There are no hard-and-fast rules for when you can or cannot use mediation.

Who? It can be used for conflict involving colleagues of a similar job or grade, or between a line manager and their staff. It can be used, exceptionally, where there is conflict between teams, or between a trade union or groups of employees and management.

When? It can be used at any stage in the conflict as long as any ongoing formal procedures are put in abeyance, or where mediation is a stage in the procedures themselves. It can be used after a formal dispute has been resolved to rebuild relationships.

What? It can be used to address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.

A judgement call

There are situations where it may not be appropriate to use mediation, but it is often not clear-cut and it will be up to the mediator or whoever is overseeing the mediation process to make a judgement on a case-by-case basis. It is often said in relation to mediation that ‘if you can’t make it better, don’t make it worse’.

Mediation may not be suitable if:

  • used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation
  • it is used by a manager to avoid their managerial responsibilities
  • a decision about right or wrong is needed, for example where there is possible criminal activity
  • the individual bringing a discrimination or harassment case wants it investigated
  • someone has learning difficulties or mental health problems
  • the parties do not have the power to settle the issue
  • one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.

There are some areas where mediation can prove particularly useful, however.

  • Relationship breakdown

There is a clear hierarchy of issues that employers perceive as suitable for mediation. In the CIPD (2007) survey of employers who had used mediation, researchers found that:

‘Outstandingly the most suitable for mediation is judged to be relationship breakdown. This underlines the value of mediation as a method of leading parties to re-evaluate their feelings towards one another, where financial compensation is less likely to be appropriate.’

This view was reinforced by case study organisations. At the Ministry of Justice, mediation is considered to be an especially effective mechanism for dealing with workplace relationship breakdowns, ‘interpersonal conflict… when people don’t communicate and the gap gets wider and wider, and things get more and more difficult’.

A host of issues can give rise to tensions at work, including arguments over personal possessions, personal space, or the use and misinterpretation of language and behaviours.

  • Bullying and harassment

The other issues particularly suited to mediation are bullying and harassment, and perceived discrimination issues, although each situation needs to be judged on a case-by-case basis, as serious cases of bullying and harassment, and clear cases of discrimination, may need to be dealt with by more formal procedures.

  • When managers are not well placed to deal with the issue

Mediation can also provide a useful tool for individuals to turn to when managers are, for one reason or another, not well placed to deal with a dispute. This may be because an intervention from a manager may be perceived as biased, or as favouring one side over another. It may be that the manager has insufficient skills in handling people conflict or ‘emotional anger’.

Discipline and grievance procedures

In some organisations mediation is written into formal discipline and grievance procedures as an optional stage. Where this is not the case, it is useful to be clear about whether the discipline and grievance procedure can be put into abeyance if mediation is deemed to be an appropriate method of resolving the dispute.

It is grievances that most obviously lend themselves to the possibility of mediation. Managers may not always see it as appropriate to surrender their discretion in relation to disciplinary issues where they believe a point of principle is at stake, such as misconduct or poor performance. However, the line between disciplinary and grievance issues may in specific instances become blurred, in which case the employer may prefer to tackle the underlying relationship issues by means of mediation rather than impose a disciplinary sanction.

Although mediation is often perceived as a form of early intervention in disputes, it can also be used to rebuild relationships after a member of staff has undergone a disciplinary or grievance process.

The Business benefits

According to the 2008 CIPD survey on workplace mediation, the main benefit in using mediation is improving relationships between individuals, cited by 83% of respondents. The other most common benefits include:

•                      reducing or eliminating the stress involved in using more formal processes (71%)

•                      retaining valuable employees (63%)

•                      reducing the number of formal grievances raised (57%)

•                      developing an organisational culture that focuses on managing and developing people (55%)

•                      avoiding the cost of defending employment tribunal claims (49%)

•                      reducing sickness absence (33%)

•                      being able to maintain confidentiality (18%).

Who will benefit from the course?

This course is of value to professionals and managers in organisations, wishing to introduce mediation to handle workplace conflict swiftly and cost effectively and who handle the following:

Delegates will learn how to:

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