Is mediation “woo woo”?
Does it involve the parties holding hands and singing “Kumbaya”?
Has it a real contribution to make to resolve employment disputes?
Let’s take a look.
What is mediation?
What is mediation? When is it appropriate? What are the advantages of using it?
Mediation is a form of alternative dispute resolution, often used in employment disputes.
Mediation allows parties in dispute to see whether they can find an informal solution to their difference(s) through a third party-a mediator.
It is commonly used for personality clashes, or disputes over performance. It can also be useful in relation to allegations of bullying, harassment, miscommunication, relationship breakdown, and misunderstandings of rights/obligations.
It is a voluntary process which must be agreeable to both parties if it is to succeed.
The idea is that the parties themselves arrive at their own solution, with the assistance of the mediator. It prevents the referral of disputes to bodies such as the Workplace Relations Commission or the Civil Courts.
The role of the mediator is to facilitate a solution between the parties, not to impose one.
It is not binding on the parties until an agreement has been reached as to how to solve the problem which has arisen. Either party can walk away until agreement has been reached.
The advantages of workplace mediation
- It is informal
- Both parties get to have their say
- It is inexpensive, compared to litigation or a claim to a body like the Workplace Relations Commission (WRC) or Labour Court, with the costs of the mediation more likely to be certain and clear at the outset
- The parties arrive at their own solution, with the help of a mediator
- It can be much faster than waiting for a day in Court, or some other tribunal such as the WRC and the early addressing of problems can prevent issues from festering and getting worse, making the ultimate solution more difficult.
WRC Mediation Service
The Workplace Relations Commission offer a mediation service, called the Early Resolution Service.
If both parties are agreeable, this form of mediation may be offered to the parties. The process is carried out over the phone by a WRC employee-a Mediation Officer-or in a face to face meeting, depending on the availability of resources.
This mediation facility is provided for in section 39 of the Workplace Relations Act, 2015, and the purpose is to attempt to resolve the dispute without the matter going to adjudication.
The general principles of this service include
- It is voluntary and both parties must be agreeable
- A party can withdraw at any stage
- It is confidential
- The mediator is impartial and it is the parties themselves who arrive at their own agreement
- Both parties must have their say
- It is flexible
- It should be non judgmental
- It should be non adversarial
All records and notes as a result of the mediation process are confidential and cannot be used in subsequent proceedings or claims with one exception: where the parties have agreed terms to resolve their differences any subsequent dispute in relation to those terms can see the notes/records used to resolve that particular dispute.
If agreement is reached under a Mediation Officer as part of a WRC mediation the terms of agreement are recorded by the Mediation Officer and a record will be kept by the WRC and given to both parties. Any subsequent breach of the terms is actionable in Court as a breach of contract.
If the dispute is not resolved by mediation it can then be referred to a WRC Adjudication Officer for adjudication.
The stages of mediation
Mediation will generally have the following stages:
- Both parties will meet the mediator alone to discuss their ideal outcome of the mediation
- A meeting with the parties will then take place to hear the issues from the perspective of both parties
- A context is placed on the issues
- The issues are explored and, hopefully, an agreement can be drawn up reflecting the solution which has been agreed between the parties
- The outcome of the agreement is explained to both parties and a copy of the signed mediated agreement is given to both parties.
When mediation is inappropriate
There are a number of situations where mediation may be inappropriate:
- It should not be used as a first resort as people should be encouraged to speak to one another and resolve their differences at the earliest juncture
- It should not be used by management as a way to avoid taking decisions, and managing
- If adjudication is needed, for example if there is a question about some behaviour or action being unlawful
- If the party who is alleging harassment or discrimination wants it investigated and adjudicated
- One of the parties is completely intransigent and using mediation will raise unrealistic expectations of a resolution
- The parties do not have the power to settle the matter.
A word of caution for employers: be careful that you do not put employees through a mediation process which will make matters worse, and perhaps ultimately come back to your door in the form of a claim.
An employment mediation agreement should be signed by the parties before the mediation commences, which indicates the parties willingness to engage in mediation to try to resolve their differences.
This will contain
- The parties
- An authority and status clause dealing with the parties and the mediator
- A confidentiality and without prejudice status of mediation clause
- A settlement formalities clause
- A clause dealing with the costs of the mediation
- A clause dealing with the legal status and effect of the mediation
- The applicable law (which jurisdiction)
- A signing page for both parties and the mediator
Mediation has an important role to play in the resolution of employment disputes, but is not always appropriate.
A skilled, experienced mediator can have a huge impact on the ultimate success or failure of the mediation.