It is all very well for HR or Legal to be convinced of the merits of mediation as a dispute resolution tool in the workplace, but that will remain just a good idea unless the parties to the dispute can be convinced to give it a go. This article considers the question of how HR can best get potentially reluctant parties both physically and psychologically “into the room” in the first place.

Our experience has been that most employees or managers fighting shy of mediation are not doing so to be difficult or vindictive, but because they (and perhaps also their advisors) have grown up with the traditional adversarial grievance model which everyone thinks is required by the Acas Code but actually isn’t, and the idea that in every workplace dispute, someone must be right (me) and someone wrong (the other guy). However, the reality is that few grievances at work do not involve some degree of culpability, perhaps unwitting, on both sides. As a result, while this contentious model will ultimately produce a legal solution, it rarely produces a real one, as the employer generally finds out some time later.

Every case depends on its own facts, but it is not much over-simplifying things to suggest that you will usually persuade people into the mediation room by either carrot or stick.

The carrot for the employee is all the attributes of mediation which attracted HR and Legal to it in the first place, and so which require little rehearsal here – speed, discretion, flexibility, high success rate (over 90% per CEDR’s 2023 Mediation Audit), informality and in particular, the focus on resolution looking forwards rather than blame for the past. Objectively it is hard to see why that would not usually appeal, but any discussion of getting people into the room must recognise early that there are a small number of circumstances where objections to mediation are well-founded and should be respected. They will include in particular where the underlying conduct or dispute is objectively serious and therefore requires action imposed by the employer, not by agreement between employees, or where a party has made clear that he/it will not respect any duties of confidentiality or other key terms of the mediation agreement.

In all the other cases, however, what is your stick? To find that, we need to go back to ordinary principles of employment law, especially the term implied into every contract of employment that you will comply with a reasonable management request. In our submission an employer’s request to deal with a workplace falling-out via mediation in the first instance will generally be a reasonable management request. From the employer’s perspective it is reasonable for all the benefits it can bring (as above), for its extremely limited cost in money and time relative to contested grievance proceedings and in particular because it is far more effective than those proceedings in rescuing a valuable relationship from the rocks of a formal process.  Many of the same advantages can benefit the employee too if he comes to it with an open mind. If assured that the formal process is still open to him if the mediation fails, he cannot usually point to any downsides. At heart, all he is being asked to do is have an adult conversation in a “safe space” with another adult about matters to their prospective mutual benefit. Unless your grievance procedure is contractual, therefore, the proposal to treat a dispute by this alternative route will usually fall squarely within the range of reasonable responses open to you as employer.  There is no breach of the law in trying this way forward even if your policy makes no reference to it at all.

That is not to say that a refusal to mediate is automatically misconduct. It must after all be voluntary to some extent and the refusal must be unreasonable. However, if as a result of a party’s refusal to mediate, the relevant issue is not resolved and then someone has to leave or be transferred, the employer must be entitled to have regard to who stood in the way of that possible resolution by an unreasonable failure to mediate, at least as much as to who caused the dispute in the first place. Your stick can consequently be quite heavy if you need it.

The consolidation for Legal and HR in all this carrot and stick approach is that you will generally only have to do it once. Once you have got your parties in the room, their experience is often far more positive than they expected. Even if they do not reach a resolution on the day, they will have gained useful insight into what the other party is thinking which may enable some sort of accommodation to be reached in the following days. They will have seen that no-one leans on them, tells them what to do or decides for them, and that they do indeed have the control which was promised to them. We have never known an organisation to embrace a resolution culture and then move back towards an adversarial approach, and the same is usually true at an individual level too.

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Tips for encouraging parties into the room  

1. Normalise discomfort and reassure of success.

The idea of inviting a ‘stranger’ to help you to communicate with someone you work alongside, can be challenging or even embarrassing. Mediation is not a soft option but one that requires courage. However, it is certainly less stressful and confrontational than a formal grievance process, let alone litigation. As a process for resolution, mediation works! It is certainly worth giving it a go, not least because there is little lost if it does not work.

2. Individuals decide the resolution, not the business.

Despite their best efforts, People Services and Employee Relations can sometimes be seen as a proxy of management rather than support for employees, leading to distrust. A neutral third party facilitator means conversations and outcomes are truly owned by the individuals involved. Without internal dynamics or bias forcing a particular result, no-one comes out of mediation saddled with an outcome they cannot live with

3. Feel the power!

Stress the autonomy mediation provides - an employee cannot be made to meet anyone he doesn’t want to, doesn’t have to be questioned by “the other side”, can call breaks, discloses only what he wishes and has the absolute right to leave the process at any time. None of those is necessarily true for a grievance, where relatively speaking the employee is handing control of his dispute to the employer.With the opportunity to sit in the room, speak their own truth, and hear from the other side, they can address differences and feel seen and heard by each other. This is the start of the journey to establishing a better future.

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