Mediation

by Jon Taylor

1 June 2023

Mediation can be a highly effective way of resolving a dispute without recourse to the Employment Tribunal.

In fact, Employment Tribunals are limited in terms of the awards that they can make to Claimants so mediation may be a quicker and less costly way to achieve a more preferable solution for all parties. Through mediation parties can, for example, agree the terms of a reference, something that an Employment Tribunal would not be able to order.

WHAT IS MEDIATION?

Mediation is actually quite difficult to define since it is a flexible process and therein lies its appeal. In brief, in a mediation, a third party mediator facilitates 2 parties in dispute to reach a settlement which is agreeable to both parties and hopefully thus preventing legal proceedings. The focus of a mediation is on helping the parties move from often entrenched positions to a resolution. The role of the mediator is that of a facilitator so ultimately the responsibility rests with the disputing parties to achieve a solution. The mediator cannot impose a settlement but can manage the process through which the parties might hopefully be able to engage in productive, sometimes even friendly, discussions.

KEY FEATURES

VOLUNTARY

Both parties have to agree to take part in the mediation. It is not possible to impose mediation on a party and it is for this reason that it can be so useful – the parties have already agreed to give mediation a go and so will therefore be entering into the process with a least some degree of willingness for it to succeed. Similarly, any party or the mediator can bring an end to the mediation if it transpires that it is not going to succeed or any party no longer wishes to participate;

NON-BINDING

There is nothing to lose for the parties in agreeing to mediate since unless an agreement is reached, no aspect of the mediation is binding and so the parties can have frank and open discussions without fear of being held to any offers or concessions;

FLEXIBLE

As detailed above, there is no set structure with a mediation and it is intended to help both parties to consider new ways of thinking about the dispute and different methods of settlement which would not necessarily be achievable through Employment Tribunal proceedings;

PRIVATE AND WITHOUT PREJUDICE

Mediations are entirely confidential and cannot be brought to the attention of any subsequent Tribunal if they are not successful. This promotes openness and enables the parties to have frank discussions without the threat of this being then held against them in any resultant proceedings.