CIPD - Mediation at work

Employee relations

October 2008

This factsheet gives introductory guidance. It:

explains what mediation is and how it works
looks at factors to consider when implementing mediation in an organisation
includes the Acas and CIPD viewpoint.

What is mediation?

Mediation is increasingly being seen as providing managers with an additional tool to deal with disagreements between individuals in the workplace. In 2008 Acas and the CIPD conducted a number of surveys on the use of mediation in Britain’s workplaces and produced the joint publication Mediation: an employer’s guide which forms the basis of this factsheet.

Go to Mediation: an employer’s guide

Mediation seeks to provide an informal and speedy solution to individual workplace conflict, and can be used at any stage of the disagreement or dispute. The process is entirely voluntary, it is flexible, and any agreement is morally rather than legally binding. What the process offers is a safe confidential space for participants to find their own answers with the support of a mediator. It does this in a number of ways:

by exploring the issues, feelings and concerns of all participants and rebuilding relationships using joint problem solving
by allowing those involved to understand and empathise with the feelings of those they are in conflict with
by helping participants develop the skills to resolve workplace difficulties for themselves in future
by encouraging communication and helping the people involved to find a solution that both sides feel fair and offers a solution that favours them.

The mediator

The role of a professional or trained mediator is to act as an impartial third party who helps two or more people in dispute attempt to reach an agreement. Although they are in charge of the process any agreement comes from those in dispute and not the mediator.

Using mediation in the early stages of conflict

Mediation is seen as particularly effective when used at the initial phase of any disagreement, before conflict escalates. An early intervention can prevent both sides from becoming entrenched and the difference turning into a full blown dispute and a potential employment tribunal claim where there are legal grounds.

In some organisations, mediation is written into formal discipline and grievance procedures as an optional stage. Where this is not the case, it is useful to be clear about whether the discipline and grievance procedure can be put into abeyance if mediation is deemed to be an appropriate method of resolving the dispute. For more on handling grievances and disciplinary matters, see the CIPD factsheet on grievances and discipline in the workplace.

Go to the CIPD Discipline and grievances at work
factsheet

Acas conciliation

Acas can provide both external mediators and training for in-house mediators, but it has a statutory duty to offer free individual conciliation where employees have lodged an employment tribunal claim, or in appropriate cases where there is a potential for a tribunal claim. The principles of conciliation are identical of those of mediation, but any agreement reached in conciliation is legally binding.

Find out more about Acas conciliation

Conflict

Conflict is an inherent part of the employment relationship. A certain degree of healthy conflict – for example, fair competition between individuals to excel in their roles – can be a good thing, and can help to create innovation between teams. But sometimes tension can lead to discord and start to create negative conflict. It is when the initial disagreement is pushed under the carpet and not managed properly that the situation can fester and the conflict spiral.

The organisational costs of conflict include:

the risk of time consuming formal proceedings such as grievances and employment tribunals
sickness absence costs
management time being diverted to deal with the conflict instead of focusing on managing the business
staff turnover and recruitment costs
lower staff morale and employee engagement
poor working relationships within the teams affected.

See the results of the CIPD Managing conflict at work survey

What happens in a mediation?

There are distinct phases in a mediation. The first stage deals with the parties separately to allow them to put across their side of the story and for the mediator to find out what they want out of the process. The remaining stages will generally be dealt with in joint session in order for participants to:

recount their story and listen to that of the other party
explore the issues together
build and write an agreement.

The mediator will then bring the meeting to a close, provide a copy of the agreed statement to those involved and explain their responsibilities for its implementation. In some cases no agreement is reached and other procedures may later be used to try to resolve the conflict. However, nothing that has been said during the mediation can be used in future proceedings. The Acas website has short video clips of mediation scenarios.

Go to Acas mediation video clip

Confidentiality

Anything said during the mediation is confidential to the parties. They may choose to reveal some or all of what has occurred during the mediation to colleagues, or their managers, but only if all parties agree. The only exceptions are where, for example, a potentially unlawful act has been committed or there is a serious risk to health and safety.

Representation

Representation by lawyers, trade unions, colleagues, or relatives is generally discouraged during the mediation itself because it is felt that where mediation meetings are restricted to parties themselves there can be more open and honest discussion. There is also more chance that they will find their own solution to the situation. There are exceptions to this however and these are discussed in more detail in Mediation: an employer's guide (see link above).

When is mediation appropriate?

Mediation is not a panacea for every dispute or disagreement in the workplace. Nor are there any hard and fast rules governing when and how it should be used.

Who? Mediation can be used for conflict involving colleagues of a similar job or grade, or between those with different jobs and levels of seniority. It can also be used where there is a disagreement between a line manager and a member of staff, or groups of staff.
When? It can be used at any stage in the conflict including to rebuild relationships after a formal dispute has been resolved, although it works best when used in the early stages of a dispute.
What? It can be used to address a range of workplace issues including relationship breakdown, personality clashes, communication problems, and bullying and harassment. It is not generally considered appropriate for matters of discipline.

It is relationship breakdown that emerges as the issue most frequently cited by employers as suitable for mediation. But conflict arising from bullying and harassment is also seen as particularly suited to mediation in certain circumstances. See the CIPD factsheet on workplace bullying and harassment for more information on this topic.

Go to the CIPD Harassment and bullying at work factsheet

Mediation can also provide a useful tool for individuals to turn to when managers are not well placed to deal with a dispute, for one reason or another.

A judgement call

There are situations where it may not be appropriate to use mediation, but it is often not clear cut and it will be up to the mediator or whoever is overseeing the mediation process to make a judgement on a case by case basis.

Mediation may not be suitable if:

used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation
used by a manager to avoid their managerial responsibilities
a decision about right or wrong is needed, for example where there is possible criminal activity
the individual bringing a discrimination or harassment case wants it investigated
someone has learning difficulties or mental health problems
the parties do not have the power to settle the issue.

Benefits of mediation

According to the 2008 CIPD survey on workplace mediation, the main benefit in using it is for improving relationships between individuals, cited by 83% of respondents. The other most common benefits include:

reducing or eliminating the stress involved in using more formal processes (71%)
retaining valuable employees (63%)
reducing the number of formal grievances raised (57%)
developing an organisational culture that focuses on managing and developing people (55%)
avoiding the cost of defending employment tribunal claims (49%)
reducing sickness absence (33%)
being able to maintain confidentiality (18%).

See the full results of the workplace mediation survey

Implementing mediation in your organisation

The way in which mediation arrangements are introduced and embedded within an organisation is crucial to ensuring their effectiveness in resolving internal conflict. It requires a range of factors including:

senior and line manager commitment
gaining trade union support where unions are recognised
having in place appropriate resources to manage the scheme on an ongoing basis
getting the buy-in of staff for the process.

Internal or external mediators?

There are different options for introducing mediation into an organisation: one is to develop an in-house mediation scheme, with trained internal mediators. Another possible approach is to call on the services of external mediators when necessary, possibly as part of a call-on/call-off arrangement where a contract is agreed with a provider to provide their services as and when necessary. These two approaches are not mutually exclusive, and can be used alongside one another.

Some of the factors to consider when deciding whether to opt for internal or external mediation arrangements include:

cost – setting up an internal scheme is likely to demand more upfront investment
size of the organisation – it may be more appropriate for a small organisation to use external mediators who will be perceived as independent, and
the amount of experience mediators will get, if an internal scheme is thought to be the best approach, and how you will select, train and manage them.

Various organisations, including Acas, now run accredited training courses for internal mediators.

Find out more on Acas mediation services

Company policies and procedures

Mediation is most effective where it is consciously introduced as part of the organisation’s approach to people management, and reflected in the culture and policies and processes of an organisation. In this way, it will be viewed by managers and employees alike as a legitimate means of resolving conflict. If there are collective consultative arrangements within the organisation, mediation should also be discussed and agreed with employee representatives.

Allocating resources

Mediation is not a quick fix, or a one-off commitment in terms of time and resources.

If a call on/call off arrangement is in place for an external mediator, for example, the anticipated cost for mediation needs to be built into the budget.
Ongoing support and supervision of the mediation arrangements is needed, particularly if the organisation is operating its own scheme.
If internal staff are responsible for conducting mediations, adequate time off needs to be factored into their working week.
It is good practice for there to be a dedicated person responsible for overseeing the mediation arrangements.

Written guidance and training

Consideration should be given to developing guidance and tools to support internal staff acting as mediators, as well as more general guidance for all employees.

Awareness training for other employees, and for line managers on how and when to use mediation, will also help to embed the scheme.

Launching mediation

Whether mediation arrangements represent a formal scheme or are used on an ad hoc basis, thought needs to be given to how these are promoted to managers and employees. It is more likely that there will be a formal launch if there is a formal scheme in place. If the mediation arrangements involve the use of external mediators, it is just as important to promote these on an ongoing basis to managers, representatives and employees so that everyone in the organisation is aware of their availability.

Evaluation

Evaluating a mediation scheme can be more sensitive than the evaluation of other company policies because of the confidential nature of the process.

Although the need to preserve confidentiality means no records are kept of the detail of the mediation, an annual evaluation is necessary to assess:

satisfaction of participants on their experience of the process
quality of the scheme
independence and professionalism of the mediators
the effect that mediation has on any reduction in formal discipline and grievance procedures
costs and benefits of using mediation.

CIPD and Acas viewpoint

Mediation is not a remedy for every situation where there is conflict between individuals in the workplace. In some cases there will be no choice but to use a formal procedure. In other disputes, one or both of the parties may not want to take part in mediation.

The earlier that mediation is used in an employment dispute, the greater the chance of success in resolving the conflict. The longer the conflict situation continues, the more entrenched the parties’ attitudes are likely to become. Once there is a deadlock it can be difficult to open up the situation and widen people’s perspectives.

The success of mediation lies partly in the fact that it is voluntary and the parties enter the process as willing participants with a common goal of wanting to sort out their differences.

Useful contacts

Acas

Civil Mediation Council

Mediation at work