This series provides a thought-provoking analysis of the concept of mediation and its place and advantages in the businesses of today.  In particular we will examine how an HR Professional’s role should be augmented so that the outcomes for the business can be enhanced; how mediation may be used for the benefit of all the main players. We will also set out the advantages which mediation can bring over the traditional adversarial route of resolving disputes which Legal and Lay Representatives need to be aware of.  In short, we will set out how mediation may be used for the benefit of all the main players.

What is mediation?

Mediation is a process where parties who are in dispute, come together with the help of an independent mediator and try to arrive at a mutually acceptable solution.    

Mediations are entirely voluntary - the parties take part because they want to. It is not like court or WRC hearings where parties are obliged to attend and ultimately to receive a judgement which is imposed.

A mediation is confidential and takes place often in commercial meeting rooms, hotels or other private venues. This is unlike the WRC or Court setting where often sensitive details are publicly aired.  

A mediation usually takes the form of either a lengthy meeting conducted over a day, or a series of small meetings conducted over several days. The mediator and the disputing parties all attend. The mediator’s role is to listen to the parties and help them to come to some common ground which can form the basis of a resolution.

The process is fairly informal when compared to WRC or Court settings. A key aspect is that the client, rather than the lawyers, is centre-stage.  Mediations are generally more comfortable and palatable for the parties and to say that mediation is less stressful is perhaps an understatement. These factors help to contribute towards the success of mediation.

Different types of mediation

There are different types of mediation.  In the main, mediations in the workplace setting are facilitative mediations.  This means that the mediator uses his or her skills to bring parties to a position where they can develop resolutions themselves as opposed to the mediator imposing any resolution on the parties.  The mediator will often have legal skills and have ideas of his or her own but these are not imposed on the parties.  The idea of participants reaching their own resolution gives a sense of ownership to the resolution – essentially, disputing parties are more ‘bought in’ and will more likely give effect to resolutions that they themselves have come up with rather than a WRC or Court ordered decision.  

How does mediation differ from traditional tribunal claims?

Although WRC hearings are not as formal as Court proceedings, nevertheless, the parties more often than not have legal representation.  A claim form is lodged, there will then be a response by the Employer and the matter will then progress to a hearing.  Significant and often costly preparatory work will be required on the part of both parties to ensure that the case is properly prepared for the hearing before the WRC Chairperson.  The hearing itself, save only in exceptional circumstances, will be dealt with publicly raising the possibility that commercially sensitive matters will become public knowledge.    

Mediation strips away all of these formal requirements.  It is therefore quicker – can be set up within a couple of weeks – and infinitely cheaper when compared to the costs of a WRC or Labour Court hearing.

Prior Engagement before Mediation

Obviously, scope exists for a negotiation directly between the parties or their representatives prior to considering mediation.

If a resolution can be achieved this way, then this is always to be recommended. However, in many instances, the complexity of the situation or the seniority of the individual involved means that a confidential mediation process represents the best opportunity to achieve a settlement which both parties can have confidence in.

We spend a large proportion of our lives in the workplace where arguments between employees can grow into emotional and charged disputes, escalating to involve more and more employees as time goes on – all very damaging to the business.  It makes sense to try to resolve disputes earlier rather let them fester and gather more steam. This is where the HR professional comes in.  They have close awareness of the dispute from its inception because all early paperwork (grievance and disciplinary etc) is dealt with by the HR department.  In many cases mediation can take place at this very early stage and indeed the advantage of early mediation is clear because it can prevent the dispute from blowing up into something much larger which takes resources away from the business. HR professionals should therefore adopt a proactive role in seeking to encourage the business to use mediation at as early a stage as possible. If this moment is lost then formal proceedings will commence, often lawyers will become involved and everything becomes more fraught, painstakingly slow and infinitely more expensive.    The employee has probably left work may be unemployed. The proceedings hang over the employer with all of the necessary administration that is required to support this. The HR professional can often prevent this loss to the business simply by encouraging mediation (which has an excellent success rate) at as early a stage as possible.