Workplace mediation: a guide to resolving conflict at work

Workplace conflict is almost unavoidable, particularly in large organisations. Whether it’s the result of a misunderstanding or a serious disagreement between colleagues, unresolved conflict in the workplace can damage productivity, morale and culture. In recent times, we have seen a significant increase in the number of grievances that are being submitted.

In fact, research conducted by ACAS estimates that unresolved conflict costs UK employers £28.5 billion per year, around £1,000 per employee. This factors in costs such as sick leave, management time, recruitment costs and, crucially, legal fees for disputes that escalate.

The human toll of workplace conflict can also be significant, with stress, low productivity, absences and loss of talent being common outcomes.

The good news is that many workplace conflicts don’t need to end up as formal grievances, or even in the Employment Tribunal. There is an alternative approach that is fast, reasonably priced and effective: workplace mediation.

What is workplace mediation?

Workplace mediation is a form of alternative dispute resolution which aims to resolve disputes through discussion moderated by a trained mediator, allowing employees reach an agreement without resorting to more formal procedures.

It is informal and voluntary but follows a structured process that is facilitated by an independent mediator. The mediator guides the two parties to the dispute through a structured and open conversation to allow them to understand each other’s views and, hopefully, agree on a way of resolving their dispute.

The benefits of workplace mediation

Mediation has grown in popularity with employers, and for good reason. When it is used in the right situations (more on that below), it has significant benefits for both employer and employees. Below, we have highlighted some of the key benefits of workplace mediation.

Speedy resolution

As HR professionals know too well, formal grievance procedures and Employment Tribunal litigation can be ongoing for months and now, with the increased backlog in the Employment Tribunal, many years. By contrast, workplace mediation can often be arranged and concluded within a matter of days.

A speedy resolution results in less cost to the employer and means that there is less time for tension between employees to grow.

Cost-effectiveness

The cost savings of workplace mediation when compared to litigation, or even to a drawn-out grievance process, are considerable.

When conducting workplace mediation, you will need to pay for an experienced mediator, but the cost of this pales in comparison to the legal fees and potential compensation payouts associated with tribunal claims.

In essence, spending a little on workplace mediation early on can help to avoid much higher costs later on.

Less stressful for employees

Formal grievance procedures or tribunal cases are often adversarial and incredibly stressful for all involved. Since workplace mediation is a collaborative and informal process, it significantly reduces the burden on employees.

Repairs employee relationships

One of the most valuable outcomes of workplace mediation is often the ability to preserve working relationships. Since the process encourages empathy — with each party to the dispute listening to the other — misunderstandings can be cleared up, and employees often return from the process with a stronger understanding of their colleague.

Confidentiality

Since mediation takes place behind closed doors, there is no public record. This is in stark contrast to employment tribunal litigation. The private setting ensures that sensitive issues can be discussed without fear of reputational damage.

Without prejudice discussions

Workplace mediation is conducted on a ‘without prejudice’ basis. This means that none of the discussions can be used in future litigation, ensuring that both parties can have a fair hearing in the event that the mediation is unsuccessful.

When workplace mediation is appropriate

Workplace mediation is a great way of resolving interpersonal conflicts and misunderstandings when preserving the working relationship between employees is paramount. Common examples include:

Staff conflicts

Workplace mediation is ideal for resolving conflicts between co-workers, particularly those that arise due to personality or communication style clashes. Workplace mediation can allow both parties to feel heard in a safe and structured environment and clear up any misunderstandings.

Allegations of bullying or harassment

If an employee has raised allegations of bullying or harassment against another employee, then mediation can be an appropriate way of resolving these, as long as there is no question of serious or illegal misconduct.

For example, if an employee has raised a grievance about their manager’s management style being abrasive, mediation would allow both parties to discuss the issue and agree on a way forward.

Team disputes

Sometimes a workplace dispute involves more than two parties. This may be different ‘cliques’ of a team which are in dispute, or multiple members of a team that are in disagreement with one individual. Mediation can be a helpful way of helping to rebalance the dynamics of the team.

Post-grievance or disciplinary

Often, after a formal grievance process has been concluded, the relationship between the parties involved will be tense. Workplace mediation can be really helpful in allowing the parties to communicate in a civil manner.

During organisational restructures

Workplace restructures are often stressful times and sometimes cause resentment among the workforce. If particular employees or union representatives are repeatedly clashing with management over key issues, workplace mediation can help the parties find common ground in a less adversarial way.

When workplace mediation is unlikely to be appropriate

Whilst workplace mediation is incredibly effective at resolving many workplace disputes, there are a small number of cases where it may not be effective or appropriate. Employers and HR professionals should be cautious about using workplace mediation in situations such as the following.

Gross misconduct

If an allegation involves theft, fraud, violence or any other form of criminal behaviour, workplace mediation will not be an appropriate solution. Such situations will require formal investigation, and potentially, police involvement.

Likewise, if an employee reports a case of serious harassment or discrimination — such as sexual harassment or racist abuse — it would not be appropriate to suggest workplace mediation.

Where there are significant power imbalances

Mediators are trained to handle power imbalances, but there are limits to what is appropriate. For instance, workplace mediation is unlikely to be appropriate if one party to a dispute is genuinely afraid of the other.

Where one or more party is unwilling to engage

It goes without saying but if one party refuses to engage with workplace mediation, it can’t take place. You can’t mediate with yourself!

Where there is no working relationship to preserve

If an employee has already left the business or is unlikely to return (for instance, in a constructive dismissal claim), there is no working relationship to preserve and workplace mediation is therefore unlikely to be the most effective way of resolving the dispute.

How the workplace mediation process works

While the exact structure of a mediation process may differ, depending on the preferences and personalities of the mediator and the parties to the dispute, most mediations follow a standard series of steps.

1. Preparation

The process begins with a need for workplace mediation being identified, whether that is by HR, a manager, or a direct request from an employee. HR will then arrange the mediation, either by assigning internal resource (if available) or by booking an external mediator. Our mediation solicitors would be happy to discuss your situation if you need external support.

The mediator will want to gain a broad understanding of the issue in dispute and will then schedule the mediation meeting at a neutral venue.

2. Individual meetings with the mediator

The mediator will usually begin by meeting with each of the parties to the dispute individually. These private meetings allow the mediator to build trust with each party and to understand the key issues for each participant. These discussions are private and will not be shared with the other participants.

3. The joint mediation meeting

The joint mediation meeting is the main event when all parties to the mediation sit down with the mediator to discuss the issues in dispute.

The mediator will often begin by setting some ground rules. For instance, reminding participants to be respectful of others, not to interrupt others and to keep the discussions confidential.

The conversation will then move on to the issues in dispute and how they might be resolved.

4. Private breakout sessions (if needed)

On occasions (particularly if a discussion is getting particularly heated), the mediator may pause the joint mediation session and meet with each party individually. This allows the mediator to cool things down or to coach each party privately.

5. Reaching an agreement

If the workplace mediation is successful, the mediator will record the agreed actions. The parties to the mediation will be provided with a document which outlines the progress made during the meeting (i.e. perhaps one party made an apology) and the commitments made by both parties. HR may also be provided with a copy of the document, but only if all of the parties to the mediation agree.

6. Post-mediation

If the mediation was successful, the parties to the mediation will then return to work and work on implementing the mediation agreement. The mediator may choose to follow up with them informally to check on progress.

If the mediation ends without a resolution, other avenues of resolving the dispute will need to be explored. For instance, one party may seek to go through the grievance procedure. If that happens, the content of the mediation remains confidential and cannot be relied upon in subsequent discussions.

Frequently asked questions on workplace mediation

Is a mediation agreement legally binding?

No, any agreement reached through mediation cannot typically be legally enforced — the agreement is made on an informal basis. If the employer wishes to make the agreement binding, they may wish to incorporate the terms into a formal contract or agreement. For instance, where an employee is leaving, the terms of the mediation agreement could be entered into a settlement agreement.

What if one party doesn’t abide by the agreement?

Since the mediation agreement is not legal binding, your first step as an employer or HR professional should be to have an informal discussion with the person who has broken the agreement and remind them of their commitment. You may wish to consider having the mediator conduct a follow-up session.

If an informal discussion does not resolve the issue, you will need to explore more formal procedures, such as the grievance process.

Does everything said in the mediation session stay confidential?

Yes — there is an expectation that everything discussed in the mediation session should remain confidential, and the mediator will not share details of the discussion without the explicit agreement of all parties to the session.

Since the discussions take place on a ‘without prejudice’ basis, the discussions cannot be relied upon in any subsequent legal proceedings.

Can employees bring a colleague or union rep with them to the mediation?

In contrast to formal disciplinary proceedings, employees will not usually be allowed to be accompanied by a colleague or union representative. Workplace mediation aims to facilitate open discussion between the two parties to a workplace dispute and adding additional parties can be a barrier to this.

If both parties agree, there may be some exceptions to this, such as if one party has a disability and requires a reasonable adjustment to allow them to take part in the mediation process.

What if an employee refuses to try mediation?

Employees cannot be forced to take part in workplace mediation, and any mediation process would be likely to be ineffective in any event if one party does not wish to participate.

As an employer or HR professional, you should seek to understand why the employee does not wish to participate — perhaps they have some misconceptions about mediation that you can clarify. However, if they still refuse to participate, you should document that mediation was offered and refused and move on to alternative methods of resolving the dispute.

What’s the difference between mediation and conciliation or arbitration?

Mediation, conciliation and arbitration can sometimes be used interchangeably, but they each have distinct meanings.

As we have explored in this article, mediation is the informal, voluntary process of having the parties to a dispute discuss their issues in the hope of achieving a resolution. The parties decide on the outcome, and it is non-binding.

Conciliation is a slightly more formal process than mediation. In the context of workplace disputes, conciliation usually takes place when an outgoing employee is considering filing a claim. A conciliator will act as a go-between in discussions between the employer and the outgoing employee in coming to terms on a settlement agreement.

Arbitration is a much more formal process where the parties to the dispute each present their cases to an independent arbitrator (essentially a private judge). The arbitrator then makes a formal and binding ruling. It is not common for arbitration to be used to resolve workplace disputes.

How do we handle mediation if the people involved are in different locations or remote?

Workplace mediation works best when all participants are in the same room as this is more conducive to the building of rapport. However, in an age of distributed workforces, online mediation can still be effective.

We’re a small company with no HR department — can we still use workplace mediation?

Absolutely. Workplace mediation can be even more vital for small businesses due to the outsized impact of a workplace dispute on small teams and the cost savings associated with resolving disputes at an earlier stage.