Reflections on workplace mediations by Anthony Fincham
17 June 2021
By kind permission of ADR Group, here is an article written by Anthony Fincham, Member of ArbDB Chambers for the ADR Group publication.
Mediations in the workplace largely follow one of two forms. The first is a dispute between employer and employee typically after dismissal over the claims which then arise. In many respects this is like any other mediation and often comes down to money - how much is the employer willing to pay to get shot of the claim and how much will the employee take? There will invariably be “soft terms” such as a reference and announcement and withdrawal of allegations.
The second is a dispute between fellow employees which the employer is keen to see resolved. Some employment procedures make provision for an outside mediator as the final recourse although this is far from typical. Of course, any falling out can go to mediation by agreement of the parties whether or not the relevant procedure makes such provision. I will offer some reflections on this latter type of workplace mediation.
Typically, the putative mediator will first be approached by the employer with the request that he or she facilitates a resolution of the problems which have emerged. The employer will pay the fee. It is important to resolve the exact relationship between mediator, employer and the employees. There will inevitably be a contractual relationship between mediator and employer but how about the employees concerned? Generally speaking, I think it best to have a tripartite agreement signed by all concerned but I do not regard that as essential and there may be cases where the employees would baulk at that degree of formality and it would be preferable for the mediator simply to explain that they have been retained by the employer and describe his role. I have followed both approaches and not encountered any particular problem as a result.
However the mediation is set up it is vitally important to bolt down in advance the issue of confidentiality. The employer, if absent at the mediation, will expect a report. Equally the employees will expect to able to speak to the mediator in confidence and indeed unless they can the mediation may make little progress. The mediator may get into an unplayable lie unless he addresses and obtains agreement on the applicable parameters. He should be able to deal with the employees in confidence subject to limited exceptions for example if he became party to information concerning criminal conduct or a health and safety issue. In other words, he needs a rainy day carve out from the general obligation of confidence.
The employees may understandably have misgivings about the role of mediator. Is he nothing more than an agent of the company filing a report and helping determine the employees’ future? I think there is no substitute for the mediator finding time to meet the employees if only virtually before the mediation to give suitable reassurances and hopefully to gain their trust.
What are the keys to a successful mediation? Of course there are no universal rules. I think it vital to get the employees as best one can to put all the issues on the table. I generally encourage a written statement describing the problems and what the particular employee hopes to get out of the mediation initially for the mediator’s eyes only and then to be exchanged only if the mediator thinks that desirable and following the agreement of both (or it may be more than two) employees. I suspect that automatic exchange without more may not be susceptible to candour and runs the opposite risk of merely inflaming the situation. Best that the mediator stays in control.
The other thing I commend is encouraging the parties to think about and indeed say positive things about the other. The point can be made that the employer clearly values both or it would not be investing time and money in this process and the outcome it desires is a making up and the working out of viable modus operandi for working together in the future. This takes me onto the importance of the mediator knowing what he can and can’t agree in the course of the mediation assuming, as I would regard as the norm, the employer is not represented. Whilst some boundaries may be set in advance there is no substitute for being able to contact a representative of the employer during the course of the mediation.
One can expect that any mediation is a stressful experience for the parties, most especially when confronting fallings out at work. One benefit of zoom or whatever is that it is relatively easy to adjourn the mediation for if you like a calling off period to allow the employees to reflect and to avoid their feeling under any pressure to agree on the day. Indeed I have set up workplace mediations to take place on different days so that cooling off is hardwired into the arrangements.
A concern that will always be in the mediator’s mind is whether success on the day is only a sticking plaster not destined to pass the test of time. Of course you never know. I think it is important to discuss with the parties some kind of structured periodic review if nothing more sophisticated than calendar meetings to discuss how things are shaping up post mediation. This could involve the mediator but does not have to. There may need to be something in place which acts as a safety valve.
I haven’t yet included a war story! I was reminded a while ago by my co-mediator of a mediation which I think took place back at the turn of the century at which one of the parties asked me to warn the other that if he did not agree the terms on offer he would take out a rather different form of contract and have him bumped off. I refused and remarkably all issues went on to be resolved and the mediation was notched up as a success. With the benefit of hindsight perhaps I should have called the police.
Anthony Fincham is an independent mediator and a member of ArbDB Chambers