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Mediation

Mediation is a form of alternative dispute resolution which involves an impartial person, the mediator, who helps two or more parties to reach a solution that is acceptable to all.

In typical mediation, the mediator will receive written statements from the parties and will then discuss the case with the parties. The mediator will then tell the parties what they think about their case on a without prejudice basis. The discussions enable the mediator to identify the areas of disagreement and move the parties towards a constructive solution.

There are both advantages and disadvantages to mediation.

Advantages:

  • Cheapness and speed – Mediation can be significantly cheaper than litigation. The reason for this is that mediation is quicker; an adept mediator can help the parties resolve their dispute in a short period of time. Indeed, ACAS, the conciliator who deals with employment law disputes, claim that 80% of mediation which it undertakes results in an agreement being reached.
  • Preserves business relationships – the overriding aim of workplace mediation is to restore and maintain the employment relationship.
  • Confidential – while case reports following Tribunal are open to the public, mediation is confidential.
  • Commercial reality – mediation may allow for remedies that cannot be enforced by the tribunal but may be more commercially suitable for the parties.

Disadvantages:

  • Voluntary – mediation is voluntarily agreed to be undertaken by the parties. Due to this, either party can exit the process at any time.
  • Enforcement – mediators cannot make binding judgements but rather assist the parties in understanding the issues and help to clarify options in order to reach a resolution.
  • Disclosure – the facts of each parties’ case may not be fully disclosed, which could result in an unfair decision.

When is mediation useful?

Due to the nature of mediation as outlined above, it is most useful for resolving relationships between people. A typical use of mediation in employment law is a grievance raised by an employee regarding a manager.

How does mediation work on the day?

Mediation is usually held on the employer’s premises. There will need to be at least two private rooms for the mediation; one for each side in the dispute. The mediator will then go from room to room and attempt to reach an agreement.

What happens if mediation is unsuccessful?

Whilst mediation is best used at the beginning of a dispute, it can be used at any time during and alongside alternative forms of dispute resolution. Should the mediation be unsuccessful, other workplace and legal procedures can be explored.

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