Mediation is a process whereby an independent third party is appointed as a mediator to help reach a negotiated settlement with one or more persons who are in dispute. Mediation is a voluntary process to resolve disputes and shall not take place without the express agreement of all the relevant parties.
The benefits of using mediation are in avoiding legal proceedings, which can prove costly to both parties and be disruptive to the lives of those in dispute and the business operations.
When to Use This Policy
Mediation is a mutually beneficial process in both resolving and avoiding protracted and damaging disputes. There is a wide range of possible outcomes available and the perspectives of both parties are fully taken into account in reaching an agreement. The range of disputes that may be solved through mediation will be those where disciplinary or grievance procedures are not applicable. Examples where the mediation process will be suitable:
- A breakdown in working relationships between employees or between an employee and their line manager (eg caused by personality clashes, or non-discrimination cases of bullying/harassment, breakdown in trust, or communication difficulties),
- Disagreements about workloads, job grades, allocation of overtime or perceived unfairness at work,
- Continuing difficulties in rebuilding working relationships following an earlier dispute (eg arising out of a grievance or disciplinary matter).
In the case of day-to-day working relationships, the mediation process should not be embarked upon where the parties can resolve minor differences by effective communication and by managers exercising their responsibilities properly.
In cases involving discriminatory bullying or harassment or where misconduct or gross misconduct, including any alleged criminal activity is concerned, the mediation process is unsuitable. The most appropriate course of action will be a disciplinary investigation followed by any appropriate disciplinary action, notwithstanding any grievance raised by the employee(s) concerned.
Relationship With Other Policies and Procedures
This policy is non-contractual.
Trade unions support the use of this policy. Trade union officials (lay or full-time) may be appointed to represent employees during mediation.
The mediation process is not an alternative to the proper use of disciplinary or grievance procedures. This mediation policy may be used once any disciplinary/grievance appeals stage has been exhausted or where the matter will be resolved more satisfactorily than by use of disciplinary or grievance procedures. This step will only be taken with the agreement of the parties involved. Such a step will require the suspension of disciplinary or grievance procedures.
Should the mediation process fail to resolve the dispute satisfactorily the relevant stage of the a disciplinary or grievance procedure will be reinstated. This step may be taken at any stage during the mediation process and will be at the absolute discretion of the CEO.
In exceptional circumstances, and with the agreement of the parties involved, we reserve the right to refer any matter for mediation under this Policy.
Appointment of a Mediator
We may appoint an internal mediator who has been accredited to act in this role having undertaken a course of study in mediation. Alternatively, at the absolute discretion of the CEO, a suitably qualified external mediator may be appointed. S/he will be provided with the appropriate dispute mediation terms of reference agreed upon by us and the relevant employee(s).
All costs and expenses of engaging the services of the mediator will be met by the company. Any costs and expenses incurred by the relevant employee(s) will not be met by the company.
The mediation process will normally be held at our premises, unless exceptional circumstances require alternative accommodation to be used.
The date of any meetings and other procedural and practical matters not referred to in this policy or in the mediation process agreement will be decided by the mediator and the parties involved. If agreement cannot be reached the mediator will have absolute discretion to decide whether this prevents the mediation process from continuing.
The Mediation Process
The role of the mediator is to help all the parties in the dispute reach their own negotiated agreement and settlement. This is facilitated by the mediator first evaluating the dispute. The parties will be invited to exchange written submissions, which are also submitted to the mediator. The mediator has the discretion to invite the parties to separate meetings or hold a joint meeting first. S/he also will be given the right to hold further separate meetings should this be deemed helpful to resolving the dispute.
Resolution of the dispute is facilitated by the mediator making constructive suggestions on how an agreement can be reached to the satisfaction of the parties. These may be accepted as they stand or provide the basis for further negotiation leading to a dispute settlement. The parties are under no obligation to accept these proposals in advance.
Both parties may appoint advisers in the mediation meetings to negotiate on their behalf. No more than one negotiator will be appointed to represent each individual party to the dispute. Up to two other persons may be present to advise each party, but they will not be permitted to play any direct part in the mediation negotiations.
The parties involved and their representatives/advisers are required not to disclose any information that is part of the mediation process to those not directly involved. Before starting mediation, the parties are required to sign a confidentiality agreement to this effect. The mediator will also not disclose any information given in confidence by either party without the express consent of that party.
Agreement and Settlement of Dispute
Before the mediation process begins, all the parties will be required to sign a mediation process agreement. This will contain the mediation terms of reference, a confidentiality clause, what will happen should the mediation process break down and what will happen at the end of the mediation process.
Should the mediation process succeed and an agreement be reached, the parties to the dispute will be required to sign a legally binding settlement agreement.
The parties will agree in writing before the start of the mediation process that:
- All communications between the parties before and during the mediation process shall be treated as privileged and be ‘without prejudice’ for the purpose of any disclosure in any legal proceedings;
- Any part of the mediation agreement and settlement is not to be treated as legally binding on any party without it first being placed in writing and agreed by or on behalf of the relevant parties;
- They will not call the mediator as a witness or expert in any legal proceedings or require the mediator to produce in any legal proceedings any written evidence or opinion related to the dispute in question, the mediation process or any subsequent related proceedings; and
- The mediator shall not be legally liable wholly or in part for any act taken or omission caused in the performance of his/her duties as the appointed mediator.
This will be in the form of a mediation process agreement.