When Should a Workplace Dispute Be Mediated?

Workplace disagreements are inevitable. People have different working styles, priorities, personalities and expectations, and most differences can be managed through ordinary conversations and good management.

Sometimes, however, a disagreement develops into something more serious.

Communication breaks down. Positions become entrenched. A grievance is raised. Someone goes off sick. A manager-employee relationship deteriorates. Colleagues who need to work together begin avoiding one another. HR becomes increasingly involved, but the underlying problem remains.

At this point, employers often face a practical question:

Should we consider workplace mediation – and, if so, when?

There is no single stage at which a dispute suddenly becomes suitable for mediation. In many cases, mediation can be considered before formal proceedings begin, during a grievance or other internal process, or after attempts at resolution have failed. Acas guidance confirms that mediation can potentially be used at different stages of a workplace disagreement.

The more useful question is often whether mediation could help the people involved have a conversation that they are no longer able to have effectively by themselves.

What is workplace mediation?

Workplace mediation is a structured process in which an independent and impartial mediator helps people in conflict discuss their concerns, understand the issues between them and explore ways of moving forward.

The mediator does not act as a judge, decide who is right or impose a solution. Acas describes workplace mediation as involving an impartial person working with both sides to find a solution to their disagreement.

This distinction is important.

Formal employment procedures frequently need to determine facts, investigate allegations or make decisions. Mediation has a different purpose. It provides an opportunity for the participants themselves to explore what has happened and decide whether they can reach an acceptable way forward.

When should an employer consider mediation?

Mediation can be particularly useful where the underlying problem concerns a damaged working relationship.

There are several warning signs that it may be worth considering.

Communication has broken down

Perhaps the most obvious indicator is when the people concerned can no longer have a productive conversation.

Emails become increasingly defensive. Meetings are avoided. Messages are interpreted negatively. Communication starts going through managers or HR rather than directly between colleagues.

Once this happens, even relatively small issues can become difficult to resolve because each new interaction is viewed through the history of the dispute.

Mediation creates a structured environment in which those conversations can take place differently.

Positions are becoming entrenched

Workplace disputes can gradually become less about solving the original problem and more about proving which person is right.

One participant may feel that their concerns have never been acknowledged. Another may believe they have been unfairly blamed. Each side becomes increasingly certain of its own interpretation of events.

This is precisely the type of relationship breakdown for which mediation can be useful. CIPD guidance identifies breakdowns in relationships, personality clashes and strong differences of opinion as circumstances where mediation may assist.

A grievance has been raised

A common question is:

Can mediation be used during a grievance?

Potentially, yes.

Acas states that mediation can be used at any stage of a grievance procedure, provided it is appropriate for the circumstances and the participants agree to take part.

This does not mean that an employer should automatically suspend or abandon a grievance.

A formal procedure may still be necessary to investigate allegations or discharge the employer’s responsibilities. But a grievance outcome does not always repair the working relationship.

An employer may conclude who was right or wrong about a particular issue while still being left with two people who need to work together but no longer trust or communicate effectively with each other.

Mediation can address that different problem.

Should mediation take place before or after a grievance?

There is no universal answer.

Where the problem principally concerns communication, behaviour, misunderstandings or a deteriorating relationship, early mediation may prevent matters escalating into a formal grievance.

Where serious allegations have been made, however, investigation may need to take priority.

Government guidance specifically cautions against using mediation as a substitute for matters that require formal investigation, giving discrimination and harassment as examples.

The important distinction is between resolving a relationship and determining an allegation.

Sometimes both are necessary.

Can mediation help after a grievance has concluded?

Yes.

In fact, this can be an important stage at which to consider it.

A grievance procedure may establish findings and recommendations, but the individuals concerned may still have to return to the same team, management relationship or workplace.

Questions then arise such as:

• How will we communicate from now on?

• What needs to change?

• How will future disagreements be handled?

• What boundaries are needed?

• Can confidence or trust be rebuilt?

• How can both people return to a workable professional relationship?

These questions may fall outside the scope of a formal grievance decision but can sit naturally within mediation.

What kinds of workplace disputes can be mediated?

Workplace mediation can potentially assist with a wide variety of conflicts, particularly those involving relationships.

These can include:

• disagreements between colleagues;

• manager-employee conflict;

• breakdowns in communication;

• personality or working-style clashes;

• disputes between senior managers or directors;

• issues following organisational change;

• difficulties following a grievance;

• return-to-work relationship problems;

• team conflict; and

• disputes where parties need to continue working together.

Whether a particular matter is suitable depends upon its circumstances rather than simply its label.

Can senior management and leadership disputes be mediated?

Yes.

Conflict at senior level can be particularly difficult for an organisation because its consequences may extend beyond the individuals directly involved.

A deteriorating relationship between directors, partners or senior managers can affect decision-making, team confidence and the organisation’s ability to operate effectively.

Hierarchy can also make conflict more difficult to address internally.

An independent mediator offers a neutral environment away from ordinary reporting structures and internal politics.

Is workplace mediation confidential?

Confidentiality is a central feature of mediation, although the precise arrangements should always be established at the outset.

The purpose is to enable participants to speak candidly and explore possible solutions without treating the mediation as another adversarial hearing.

This can allow conversations to move beyond carefully prepared positions towards the issues that are actually preventing resolution.

Is mediation voluntary?

Workplace mediation generally depends upon the participants agreeing to engage with the process.

Acas confirms that both sides need to agree to mediation.

An employer can therefore suggest or encourage mediation, but simply requiring two reluctant employees to sit in a room together is unlikely to create the conditions for constructive dialogue.

A mediator will normally speak with participants beforehand so they understand the process and can consider whether they are willing to take part.

What actually happens during workplace mediation?

The precise format can vary according to the dispute and the mediator’s approach.

Typically, the mediator will speak separately with each participant before bringing the parties together where appropriate. Acas describes its own process as normally involving separate meetings followed by a joint meeting, with mediation potentially taking place remotely, at the workplace or at a neutral venue.

During the process, each person has an opportunity to explain their perspective.

The mediator helps identify the issues that need to be discussed, encourages constructive communication and assists the participants in exploring possible solutions.

Where agreement is reached, practical arrangements for the future can be identified.

Does mediation mean somebody has to apologise?

Not necessarily.

An apology may be important in some disputes, but mediation should not begin with a predetermined outcome.

The resolution might instead involve agreeing new ways of communicating, clarifying roles, establishing boundaries, changing particular working arrangements or simply reaching a better understanding of each person’s concerns.

The parties retain control over what they agree.

When might workplace mediation not be appropriate?

Mediation is not the answer to every workplace problem.

There may be circumstances where allegations must first be formally investigated, where urgent safeguarding or disciplinary action is required, or where another process is more appropriate.

Acas specifically notes that mediation is not appropriate for every type of dispute and should not replace the responsibilities of management.

Suitability should therefore be assessed carefully rather than treating mediation as a standard procedural step.

Is it better to mediate early?

Often, there is considerable value in considering intervention before relationships become completely entrenched.

Acas encourages employers and workers to address workplace problems positively and early, while CIPD describes mediation as an informal conflict-resolution mechanism capable of helping restore working relationships.

That does not mean rushing people into mediation.

It means recognising that leaving a deteriorating relationship untouched can make the eventual conversation considerably harder.

How do you know whether a workplace dispute is suitable for mediation?

For employers and HR professionals, some useful initial questions are:

• Do these people need to continue working together?

• Has ordinary management intervention stopped producing progress?

• Is the relationship itself now part of the problem?

• Are the participants becoming increasingly entrenched?

• Could a confidential discussion enable issues to be addressed that a formal procedure cannot?

• Are both participants willing to explore a resolution?

If several of these questions produce a “yes”, mediation may be worth considering.

Taking the next step

The decision to mediate does not need to begin with a commitment to a full mediation.

A confidential preliminary discussion can help an employer, HR professional, adviser or participant understand whether the dispute appears suitable, what the process would involve and whether there are issues that should be addressed before mediation begins.

With a background spanning more than 25 years at the Bar and extensive experience in employment and workplace disputes, Colin Bourne provides independent mediation for organisations, senior leaders, managers and employees facing difficult workplace conflict.

If you are considering mediation and would like to discuss whether it may be appropriate, you can contact Colin for an initial confidential conversation.