Workplace Mediation Fact Sheet

‘The Government should challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution, e.g. through greater use of in-house mediation, early neutral evaluation, and provisions in contracts of employment’. (Michael Gibbons, Review of Employment Dispute Resolution, March 2007)

What are the Benefits of Workplace Mediation?

Workplace Mediation provides a range of benefits to managers and staff within organisations. Mediation is beneficial because:

• It offers a cost effective alternative to lengthy and unnecessary investigation or litigation

• It is a very efficient process that saves time and money

•  The focus is on finding and implementing positive and productive solutions to disputes

What is Suitable for mediation?

Many workplace conflicts, grievances and disputes are suitable for mediation. However, cases involving serious misconduct or issues related to power issues may not be suitable. ScotCoach always assesses each individual case for suitability before commencing mediation.

ScotCoach have successfully mediated in the following types of situations:

• Allegations of bullying and harassment

• Conflict between managers

• Disagreement between members of a team about roles and responsibilities

• Conflict arising from acquisition and change

• Arguments over management roles

• Issues related to the sale of a business

How Long Does It Take?

In our experience, workplace mediations can take as little as ½ day and as long as several days. A deciding factor will be how many parties are involved (2 to many) and the types of issues needing mediation. On average we find most workplace mediations take one day.

What does it Cost?

You can pay anywhere from £500 o £1500 per day for an external professional mediator.

Please note we no longer conduct mediations for new organisations. We do offer both internal and external mediation training. If you need mediation services in your area, please contact us and we will send you a list of known providers.

Are mediators in the UK accredited?

At the present time there is no independent professional mediation association or organisation accrediting, licensing or certifying workplace mediators in the UK. As such there is no recognised standard training for mediators and no system of regulation (Scotsman, 10 April, 2007).

he Scottish Mediation Network external link (SMN) have a register of mediators, both for individual mediators and trainers.

In the Republic of Ireland the MII does offer a good accreditation process. We have accredited our 7-Day course through thee MII in association with EPA (ROI).

The ‘ScotCoach Model’

The 7-Step ‘ScotCoach Model’ for Effective Workplace Mediation

The ScotCoach Model was developed by the lead Mediators in ScotCoach during their professional practice as mediators and trainers over the past 20 years.

This Model is somewhere between the problem solving and transformative models of mediation and utilises aspects of both approaches.

1. Pre-mediation Stage- 90 minute individual sessions with each party
2. Assessment of suitability of issues and parties
3. Clarify & adjust expectations about outcomes
4. Obtain statement of willingness to participate
5. Build initial rapport with parties
6. Arrange suitable and agreed neutral venue
7. Establish working principles, confidentiality, educate 

How Successful is Mediation?

In our experience, in excess of 85% of mediations result in a workable agreement and so it is highly successful when compared with other interventions.

Sometimes people believe that mediation is always a case of arriving at a ‘win-win’ outcome. This can be distressing to one or more parties as they are of the view that someone needs to ‘take the blame’ or accept responsibility for what has occurred. Others may feel that they have unjustly been asked to ‘take the blame’ for one thing or another and are therefore concerned that this will be repeated during the mediation process.

Employees are very often right to feel this way and it is important to understand that mediation is not about glossing over the facts or the truth and that invariably one or more of the parties does need to accept responsibility for some aspect of their behaviour or the problem. However, no one can predict what each person (if anyone) will end up taking responsibility for until the process takes place as again it is stressed that the outcomes are in the hands of the parties to the dispute.

Employees also need to understand that there is no expectation or requirement on them to have to arrive at a resolution if they genuinely do not feel that this is possible and that they can come to this conclusion at any stage of the process without incurring any subsequent reprisals or sanctions by management. What is key is that there are no preconceived ideas about the outcomes by the mediators or management and that the mediators are impartial at all times.

The mediators do not investigate any alleged conduct and do not arrive at findings or conclusions about anyone’s conduct; it is rather very much about respecting the dignity and experience of everyone involved and attempting to find a way forward for all concerned if this is at all possible.

Control of the Process

Whilst the parties are responsible for arriving at a resolution, the mediators maintain control of the process at all times and ensure that all parties behave respectfully and appropriately throughout.

Conditions For Mediation

The mediator does not impose a solution on the parties as it will be up to the employees engaged in the mediation process to arrive together at a resolution that all feel they can live with.

The mediators will assist the parties to identify the problems and facilitate a safe and respectful discussion and explore whether a settlement or resolution is possible.

Mediation is always voluntary. No one is ever forced, nor should they be coerced to participate. No one "sends" participants to mediation and no one enforces any agreement reached. The parties must choose mediation, or it will not happen, and chose to abide by their agreement (if one is reached). Mediators maintain complete confidentiality and parties are asked at the outset to sign a Participant Guidelines and Confidentiality Agreement that indicates their willingness to abide by these parameters.

The voluntary nature of mediation is one of its strengths and must be observed by all if it is to have a chance of succeeding. It is therefore extremely important that employees do not feel that they may be sanctioned in some way if they do not choose to attempt mediation. Workplace mediation is also informal in nature and is not part of the formal grievance handling procedure. As such no formal notes or minutes are taken during the mediation sessions.

Participants and the mediator are able to make hand-written notes for their own personal use during the mediation process but these are then destroyed at the end of the process. The independence of the mediator is essential if all parties are to feel that the process is being conducted in an impartial manner. This can be difficult to achieve sometimes when using internal mediators as there are always connections between people at work which may lead one or more parties to feel that a particular colleague is unacceptable to them as a mediator as they may not feel that they are capable of being neutral and impartial.

For this reason it is important to have a range of employees drawn from a cross section of operational areas who are available to perform this role as this will increase the likelihood of both parties feeling comfortable with the choice of mediator.

Confidentiality, Disclosure and Agreements

Whether an agreement is reached or not the detail of what is discussed during the various individual and group sessions is confidential and the parties and mediators are bound by an agreement not to disclose the content of the discussions to anyone outside of the process, unless express permission is given by the parties to do so.

Where an agreement has been reached, the parties may wish to prepare a written agreement or even multiple agreements. A copy of any agreement/s is to be kept by the parties, the mediators and the HR and/or commissioning manager.

No agreements will be allowed to be entered into which are in breach of an employee’s rights or entitlements or which may alter the working conditions of another person. Where an aspect of any agreement may have an impact on the business needs or resources these issues are canvassed with the commissioning manager during the mediation process prior to any agreement being reached. Agreements of a commercial nature and/or compromise agreements will not be entered into as a result of workplace mediation and would need to be arrived through an appropriate separate process.

Informal hand written notes may be taken by the parties and mediators throughout the process but no notes are to be kept by the parties or the mediators following any of the sessions and any notes taken throughout the process are to be destroyed in the presence of the mediators. Agreements arrived through workplace mediation are not enforceable by law or the disciplinary procedures of an organisation and are entirely dependent upon the goodwill of the parties to the agreement.

Whilst the mediators and parties enter into a voluntary confidentiality agreement with each other it is important for all involved to know and understand that the mediators will need to provide a report to the commissioning manager about any matters that arise which may incur a duty of care or other issues that will have a significant impact on the business. Where such matters are to be disclosed by the mediator this would be discussed with the parties before hand. It may also be agreed with the parties that it would be helpful for the mediator to convey some aspects of the matters discussed during the mediation process so that additional resources or support can be put in place for the individuals concerned.

Subsequent Action

Workplace mediation is a non-prejudicial process. In the event that the mediation does not arrive at a resolution or where an agreement subsequently breaks down employees are therefore entitled to pursue further action either by making a formal complaint or taking legal action. In the event that the mediation does not arrive at a resolution or where an agreement subsequently breaks down employees are entitled to pursue further action either by making a formal complaint or taking legal action.

In this sense mediation is non-prejudicial and employees do not waive their rights to organisational due process by agreeing to participate. It is accepted practice that employees or mediators are not required to give evidence at court or during a formal investigation about anything that has been said at any of the sessions.

Where agreements subsequently break down it is essential that a follow up process has also been agreed to during the mediation which is to be followed by all concerned, so that the conflict is not allowed to escalate again and so that the business does not experience further unnecessary disruption.

Common Misconceptions about Mediation

What follows are some of the key areas where misconceptions arise about workplace mediation and a brief overview of the best practice approach adopted by ScotCoach in its own practice.

1.      The External Mediator Solves the Problem For The Parties

The mediators do not impose a solution on the parties as it will be up to the employees engaged in the mediation process to arrive together at a resolution that all feel they can live with.

The mediators are trained independent people whose role will be to assist the parties to identify the problems and facilitate a safe and respectful discussion and explore whether a settlement or resolution is possible.

2.     Willingness to Participate

All that is required initially is that the parties feel a willingness to attempt the resolution process. This does not have to mean that they like the other person or will end up liking them or befriending them, only that they are willing to enter into a frank and honest discussion of the issues in an effort to resolve them.

Parties are also free to end or pause their involvement in the process at any time if they feel that they are either too distressed or lose faith in the process to arrive at a resolution.

3.     The Parties Need to Be in The Same Room From The Outset

If employees are initially too distressed to meet face to face with each other it is possible to conduct parts of the process using a ‘shuttle method’ whereby the parties are interviewed in separate rooms and if at any time they feel comfortable enough they can then be brought together. However it is possible to use a shuttle approach throughout the entire process if needed or a combination of approaches can be used that suits the needs of the parties and the issues involved.

Parties to the process can expect to be asked to consider and discuss their needs, fears and expectations for the future and to make statements about what they believe would solve the problem and then to enter into a negotiation process to attempt to arrive at a resolution. Each person is met with individually in the first instance to confidentially discuss each person’s issues and to assess if the conflict is suitable for mediation. Once it has been assessed as suitable and the parties have agreed to proceed with the mediation the parties can then be brought together.

• The Legal Framework For Workplace Mediation

• Mediation Case Study

• ScotCoach Ethical Guidelines