How does confidentiality work in workplace mediation when HR needs to manage the implementation of any agreement?

One of the advantages traditionally billed for workplace mediation as an alternative to formal dispute resolution processes is confidentiality. Confidentiality creates the “safe space” required for a full and no-commitment exploration of the feelings, issues and possible resolutions and forms a key plank of the usual pre-mediation agreement.

But there are limits, since the opposing parties to a workplace mediation could otherwise agree between themselves something which worked for them but for reasons budgetary, structural or commercial could or would not be implemented by the employer. As a result, the principle of absolute confidentiality has to flex somewhat when a solution requires involvement on the part of the wider business, i.e. where that solution is more than behavioural adjustments by either or both parties to the mediation.

Even then, it is likely that HR will need to know the outcome of the mediation at some stage. If there is no agreement, then the problem which led to the mediation is clearly unresolved and it will probably fall to HR to manage the next steps, which may include a formal grievance, investigation or disciplinary action. In most such cases, HR needs to know only that there is no resolution yet, not why. That “safe place” will only be preserved if the detail of what passed between the parties and the mediator during the mediation itself remains truly confidential – the hopes and fears expressed, the resentments aired and the proposals made. Those “inner workings” are usually irrelevant to the steps which HR or the business may need to take to put the eventual agreement into effect. Where the mediation is unsuccessful, a workplace mediator should therefore not reveal to HR the stance taken by one party or the other, however much he/she may be pressed to allocate responsibility by an HR professional trying to determine the next steps in the matter. The exception is perhaps where the process falls over because one party refuses to mediate at all. At that point it could be argued that he/she had become the principal obstacle to resolution of the dispute, with potentially different formal consequences, and that HR would have the right (indeed, potentially the obligation) to act on that knowledge.

If the mediation succeeds, the parties may well be able to keep it between themselves and not involve HR. As soon as one party defaults on the agreement, however, HR would normally be the first call for the employee seeking to enforce it. HR would need to understand at that point at the latest what the parties had agreed, even if they had originally agreed to keep those terms confidential. Otherwise the agreement becomes impossible to enforce and so, in practical terms, pointless.

HR is bound by obvious professional and contractual obligations of confidentiality in relation to employee matters, which should provide reassurance to the employees concerned. However, important actors needed to implement a mediated settlement may not be part of the HR function. Line managers, colleagues, payroll, etc., may all need to agree. With this no doubt in mind, the CEDR model agreement states that the parties will keep the terms of their accord confidential “except insofar as is necessary to implement and enforce any of its terms”.

Where that agreement concerns a transfer, promotion, termination, training, etc., it makes sense to have HR involved from an early stage. Selling that to the employees in dispute may not always be easy, as HR will frequently be seen as biased in favour of the senior employee and where that is the case could not sit in one or other room through the mediation without damaging the apparent neutrality of the process. Therefore it may make sense for the mediator to encourage the parties at the outset to seek the input of HR as soon as their discussions begin to settle on some resolution which requires others’ consent, even if not until then. This may be directly or by asking the parties “How would that work, who would need to be involved/consulted, would anyone else need to know?”

HR will then take upon itself the duty to disclose the issues or suggestions arising from the mediation only on a ‘need to know’ basis in order to resolve them. It is wise for HR to give the parties some early indication of who in management would need to approve a particular proposed solution. If either employee were so sensitive about the level of disclosure implicit in that onward referral that he/she would prefer it not to be made, the proposal could by his/her choice be dropped at that stage and full confidentiality preserved. Ultimately the parties must decide between them where the line lies between what they wish to agree and how far it can be kept confidential.

For these purely practical reasons absolute confidentiality cannot usually be guaranteed to a prospective workplace mediation participant, either by the mediator or the business. What can be said to him/her with some certainty, however, is that the common alternative (formal disciplinary or grievance procedures) will generate much more noise over a much wider population within the workforce.

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