The question of how to engage employees in mediation as a route to resolution of their grievances is one for both HR and the mediator alike. Sometimes engagement will be full and immediate but at least as often, participation will initially be secured through managerial or organisational pressure to mediate, and the actual participation may be reluctant, half-hearted or outright sceptical.

The same is true for organisations. When first faced with the suggestion of mediation, and despite its many attractions relative to a formal process (speed, cost, flexibility, focus on preservation of relationships, etc), they may stall – “it’s not in our procedures”, “the unions won’t like it”, “Acas says we can’t do it”, “we’ve never done it before”, “examples must be made”, and so on. It is of course completely right that not every dispute at work can or should be mediated. It is also true that few grievance procedures currently provide expressly for it. But it is not true that the Acas Code of Practice prevents employers suggesting mediation as a first response to a complaint rather than as an outcome from it, and it is not usually true that modern union representatives will object to it, since they know as well as you do that in reality, their members’ best interests lie in protecting and rebuilding workplace relationships, not in tub-thumping rhetoric almost guaranteed to destroy them.

But commerciality, pragmatism, cost and so on tend to speak more loudly to businesses than to individuals since for them a grievance or allegation is often personal, something affecting how they may be seen by others and indeed by themselves. Formal grievances and disputes almost always polarise the parties – “I am entirely right and
he is entirely wrong” – where in reality that is very rarely the case. If you believe that your conduct or performance has been beyond reproach, why would you not wait for the formal process to vindicate you and grind your opponent’s face in it?

Alternatively, in the heightened emotional state which often accompanies workplace complaints, why would you believe HR’s assurances that the other side to the mediation will respect your confidentiality? Why would you be willing to open up to the mediator about what really matters to you in the dispute if you think it will be used against you afterwards?

Maybe you are bringing your complaint as an issue of principle, to ensure that its subject is punished, ideally publicly, for what you say they have done? Where is the attraction then of a discreet process covered by a blanket confidentiality obligation?

It may just be that you are scared. Scared of having to talk to the other person, of being less calm or coherent than they are and so less persuasive to the mediator, of retaliation afterwards, or that they will blind you with clever legal arguments and tie you up in knots in the questions they may pose.

There are lots of such reasons available for a worker’s not engaging properly (or at all) when mediation is suggested for a workplace dispute. But most of them are very weak and it is the role of HR and the mediator to present the process in a way which shows that to be the case. Here are some possible responses to those concerns:

“I am right and he is wrong”

• Emphasise the benefits and the unique aspects of mediation to appeal to their sense of fairness and resolution.
• Unique opportunity to express perspectives in a controlled environment to allow parties to feel heard. Mediators work hard to surface the real reasons behind the conflict and find areas of common ground
• Focuses on finding a mutually agreeable solution based on interests and needs and more likely to secure some form of acknowledgement than in a formal process.
• Passes back control, responsibility and decision-making to the parties to agree a way forward.
• Raise the possibility that the formal process finds that there is some culpability on the part of the complainant also and therefore that the vindication they seek is not on the table after all. What will they do then?

Confidentiality protections

• Reference the mediation agreement and that confidentiality is a cornerstone of the process. Where a breach of confidentiality occurs, it can be treated by the employer as misconduct.
• Protected by law, meaning that what is said is without prejudice and cannot be used in court.
• The process differs from a formal grievance where a larger number of people may be involved and aware, and where the confidentiality obligations are weaker.
• Provides a safe space where parties can speak openly and express their concerns, without fear of judgment, in the presence of a trained mediator who is also committed to these principles.

Issue of principle: I want the other ‘punished’

• Understanding their underlying motivations: show them how mediation can lead to outcomes that address their core concerns or unmet needs, not just surface-level issues. Isn’t the important thing that the issue is addressed or the relevant conduct stops going forwards, rather than exactly how that is achieved?
• Focus on solutions, not punishment: emphasise that mediation is about finding solutions rather than assigning blame or punishment and explore benefits of that shift in mindset. How will the complainant feel if the formal process does not lead to the sanction that they hope?
• Confirm that the mediation route does not mean that anyone “gets away with” anything – if it is felt by the employer that disciplinary action is necessary to make the necessary changes, it can still be taken. But that is a decision for the employer to make, not the employee raising the complaint.
• Mediation fosters an environment to re-build trust and cooperation which can be more productive than a punitive approach and lead to longer term benefits. How will they work with the other person in future if it becomes clear that the complainant placed sanction above pragmatic resolution?
• The parties take control of the resolution process to find mutually agreeable solutions which is more empowering than relying on external authorities to impose punishment.

Fear and lack of confidence

• Use active listening to surface concerns and anxieties.
  The flexibility of the process then allows mediation to be tailored, e.g., spread over several days, private sessions with the mediator, use of breaks, timing of joint sessions and of opening statements, and other strategies to reduce the pressure of the process.
• Reassurance that the mediator is always present in joint sessions so they are ‘not alone’ and encouraging the use of less provocative ‘I’ statements to express their feelings and needs.
• Understanding that the parties may exit the process at any time, though the mediator should also contract up front to say “that is when I’ll likely be asking you to stay”, as it can typically be a point of breakthrough.
• Check if the right parties are in the room, maybe look to engage the line manager in the process too.
• Consider allowing or even encouraging the party to be accompanied by a friend or colleague, not necessarily to take any active role, but at least to provide a level of moral support “in their room”.
• HR can accept that mediation won’t be easy but emphasise at the same time that it will certainly be less stressful for the complainant than a formal contested grievance process.

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