Mediation at work

Our research shows that workplace conflict is most likely to be resolved when direct action, either informal or formal, is taken. Mediation isn’t the only course of action. In some cases it may be most appropriate to go straight to a formal disciplinary procedure and in others, one party may refuse to take part in mediation. However, it is typically less costly – both in time, money and relationship fallout – than the more formal routes of grievance, discipline and tribunals.

The success of mediation lies partly in the fact that it’s voluntary and the parties enter the process as willing participants with a common goal of wanting to sort out their differences. It is an opportunity to find ‘win-win’ solutions that suit both parties.

The earlier that mediation is used in an employment dispute, the greater the chance of successfully resolving the conflict and re-establishing workable relationships. The longer conflict continues, the more entrenched positions become and the more work there is to do. As such, there is a strong case for developing skills in relationship building and mediation throughout organisations and, rather like coaching skills, making them a core part of the people management skills set.

Mediation is an additional tool to deal with disagreements between individuals in the workplace. It’s often described as a form of alternative or informal dispute resolution as it’s less formal than grievance and discipline procedures and employment tribunals. It nonetheless follows a structured approach.

Mediation seeks to provide a speedy solution to individual workplace conflict, and can be used at any stage of a disagreement or dispute. The process is flexible and voluntary, and any agreement is morally rather than legally binding. The process aims to provide a safe, , confidential space for those involved (the ‘parties’) to find solutions that are acceptable to each side. Specifically, mediation provides the potential to:

• help parties involved in conflict to hold open conversations that would normally be too difficult to have constructively
• help the parties to understand and empathise with each other’s emotions and situations
• explore the issues and concerns of all parties and use joint problem-solving to find a solution that each side feels is fair
• encourage communication and establish workable relationships
• help participants develop the skills to resolve workplace difficulties for themselves in future.

A professional or trained mediator’s role is to act as an impartial third party who facilitates a meeting between two or more people in dispute to help them reach an agreement. Although the mediator is in charge of the process, any agreement comes from those in dispute.

Mediation is preferable to more formal legalistic processes in a number of ways:

• It makes parties less rather than more entrenched in their views and thus more open to compromise.
• It can maintain and improve relationships.
• It is less stressful for those involved.
• It avoids the costs involved in defending employment tribunal claims.

It can become clear during mediation (sometimes very early on) that one or both parties feel the relationship is essentially beyond repair. ‘Workplace mediation’ focuses on maintaining the relationship and helping people find ways to work together better, and can be distinguished from ‘employment mediation’ where the central issue is how to end the employment relationship in as peaceable a way as possible. While workplace mediation can become employment mediation, they have different aims and can benefit from different approaches.

Together with Acas, we’ve published a second edition of our employers’ guide Mediation: an approach to resolving workplace issues.

Conflict is an inherent part of the employment relationship. A certain degree of healthy 'conflict' can be a good thing, helping to create innovation between teams. Examples of this might include fair competition between individuals to excel in their roles, and low level conflict over what tasks to do, or how to do them. But interpersonal tension can easily lead to discord, discontent and resentment, and damaging relationships. Further, when such conflict is pushed under the carpet and not resolved, the situation tends to fester and escalate.

The organisational costs of conflict include:

• management time being diverted to deal with the conflict instead of focusing on managing the business
• the risk of time-consuming formal proceedings such as grievances and employment tribunals
• unworkable relationships and a decline in productivity
• lower staff morale and employee engagement
• sickness absence costs
• staff turnover and associated recruitment costs.

Our survey report Getting under the skin of workplace conflict describes employees’ experiences of interpersonal conflict at work. It shows how conflict – both isolated clashes and ongoing difficult relationships – can arise, affecting individuals and their work.

We explore changes in employers’ use of different methods of managing individual conflict and how far recent changes in legislation on dispute resolution have affected employer practices in our report Conflict management: a shift in direction? Case studies show a shift towards greater informality in managing conflict, including the use of ‘facilitated conversations’ by HR.

There are distinct phases in a mediation. Firstly, the mediator talks to each party separately to understand their side of the story, and to find out and help each party focus on what they want from the process. The remaining stages will generally be dealt with in joint meetings in order for participants to:

• recount their story uninterrupted and listen to that of the other party
• explore the issues together, working towards a mutually acceptable solution
• build and write an agreement.

The mediator will then bring the meetings 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.

Changing mindsets

It’s important that people are able to express their feelings to the other party about why they feel aggrieved and how the unfair treatment has affected them. Often they will not have been properly heard before as avoidance or heated arguments will have prevented this. Not only can feeling properly heard be cathartic, but hearing the stories of adversaries can transform feelings about them.

However, at some point during a joint meeting, a key process is for people to move their focus away from the past (their grievances and experiences) and towards what they actually want to happen now and in the future.

A key way that mediators facilitate this process is to help people to think not in terms of the positions that they adopt in conflict (for example, ‘I can never trust you again’) and towards the issues that they care about (for example, ‘I want to feel that I am supported, not undermined by my colleagues’). These subtle shifts in mindset can be hard to achieve but tend to be powerful. They are central to the mediation process.

Confidentiality

Anything said during mediation should be confidential to those taking part, unless all parties agree to share specific points, such as agreed actions or arrangements with their colleagues, managers, or HR. This means that often, a mediator may report to HR that a meeting has successfully taken place but not disclose the detail of what was discussed or agreed. The only exceptions to default confidentiality are where, for example, a potentially unlawful act has been committed or there’s a serious risk to health and safety.

Representation

Some lawyers practice as mediators, as do managers and trade union representatives in in-house mediation schemes, and some parties like to have someone accompany them for emotional support during mediation. But representation by lawyers, trade unions, colleagues, or relatives – especially in ‘shuttle mediation’ where the parties are not present in the same room – is generally discouraged. Mediation works best where there is direct interaction between those involved in the conflict, leading to open and honest discussion, a reframing of relationships and solutions that the parties find themselves. By contrast, representation can lead to the formalisation of the mediation process. This is discussed further in our employers’ guide Mediation: an approach to resolving workplace issues.

Mediation isn’t a panacea for every dispute or disagreement in the workplace. There aren’t any hard and fast rules governing when and how it should be used but some principles include:

• 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’s 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. Used in the early stages of a dispute it has the benefit of stopping it from escalating. At a very early stage, a team manager may use mediation techniques informally in helping people resolve differences, rather than bringing in a designated mediator. Equally, mediation can be useful when managers aren’t well placed to deal with a dispute, for example because they’re implicated in it or lack the skills to resolve it themselves.

• What? It can be used to address a range of workplace issues including relationship breakdown, personality clashes, communication problems, and bullying and harassment. Relationship breakdown is the issue most frequently cited by employers as suitable for mediation.

When mediation may not be appropriate

Mediation may be unsuitable if:

• it’s used by a manager to avoid their managerial responsibilities
• a decision about right or wrong is needed, such as in cases of criminal activity or overt abuse, when disciplinary procedures are more appropriate
• an individual bringing a discrimination or harassment case wants it investigated formally
• an individual is experiencing mental health problems, such as severe stress, or has learning difficulties that will be an obstacle to a joint meeting
• it's clear the parties don’t have the authority to settle the issue.

Using mediation in the early stages of conflict

Mediation is often 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 avoid a full-blown dispute in which an employment tribunal claim becomes more likely.

In some organisations, mediation is written into formal discipline and grievance procedures as an optional stage. Where this isn’t the case, it’s 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. 

Acas has a statutory duty to offer free ‘early conciliation’ before employees lodge an employment tribunal claim. This more proactive approach has been developed in response to evidence of the benefit of early intervention, in particular before a tribunal claim has been filed when positions tend to become more entrenched. The principles of conciliation are identical to those of mediation, but any agreement reached in conciliation is legally binding.

The way organisations introduce and embed arrangements for mediation is important for their effectiveness. It requires a range of factors including:

• getting commitment from senior leaders, line managers and trade unions (where they are recognised)
• having appropriate resources (administration and trained mediators) in place to make the scheme sustainable
• raising awareness so that employees know that it’s available and understand its value
• For example, creating an expectation that colleagues in conflict try mediation before going through formal processes, and keep the option to halt the formal process at any time and return to mediation. In a more challenging approach, some have argued that grievance procedures should be overhauled, centred on mediation and renamed ‘resolution procedures’.

Planning resources for internal or external mediators

There are different options for introducing mediation into an organisation:

• developing an in-house mediation scheme, with trained internal mediators
• calling 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 deliver their services as and when necessary.

These two approaches can be used alongside one another.

Some factors to consider when pplanning internal or external mediation arrangements include:

• Size of the organisation – it may be more appropriate for a small organisation to use external mediators who will be perceived as independent.
• Cost – setting up an internal scheme is likely to demand more upfront investment, but may be more cost-effective in the longer term.
• How to select, train and manage a pool of internal mediators.
• The amount of experience internal mediators get – it needs to be sufficient for them to maintain their skills.
• Ongoing support and supervision of 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‘s good practice for there to be a dedicated person responsible for overseeing the mediation arrangements.

A number of organisations run accredited training courses for internal mediators.

Manager training

Management training is key to ensuring organisational behaviour complements the provision of mediation. According to our report Real-life leaders: closing the knowing-doing gap, managing conflict and having difficult conversations are the top two challenges for leaders at all levels. Managers can apply mediation skills informally to resolve low level conflict, helping build robust teams in which disagreement can be expressed safely.

Contacts

Acas – dispute resolution 

Civil Mediation Council

Books and reports

ACAS. (2014) Managing conflict at work. Advisory booklet. London: Acas.

GIBBONS, M. (2007) Better dispute resolution: a review of employment dispute resolution in Great Britain. London: Department of Trade and Industry.

LLIDDLE, D. (2017) Managing conflict: a practical guide to resolution in the workplace. London: Kogan Page.

SEAMAN, R. (2016) Explorative mediation at work: the importance of dialogue for mediation practice. London: Palgrave Macmillan.

SAUNDRY, R., LATREILLE, P. and ASHMAN, I. (eds) (2016) Reframing resolution: innovation and change in the management of workplace conflict. London: Palgrave Macmillan

WOOD, S., SAUNDRY, R. and LATREILE, P. (2014) Analysis of the nature, extent and impact of grievance and disciplinary procedures and workplace mediation using WERS2011. Research paper ref: 10/14. London: Acas.

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Journal articles

BENNETT, T. (2014) The role of workplace mediation: a critical assessment. Personnel Review. Vol 43, No 5, pp764-779.

TALLODI, T (2015) Mediation's potential to reduce occupational stress: a new perspective. Conflict Resolution Quarterly. Vol 32, No 4. pp361-388.

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Members and People Management subscribers can see articles on the People Management website.