June 12, 2017

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Mediation With Bite – giving your dispute resolution process some teeth

If we assume that your asking an employee and his manager to try to mediate a falling-out between them is a reasonable management request, what rights do you have as employer if one of them refuses?

This came up at the 1st February Civil Mediation Council seminar on introducing mediation as a proactive part of grievance and disciplinary procedures.  It is a good question because it highlights the possible tension between the employer’s right to require its employees to act in line with its reasonable instructions (and ultimately to dismiss if they don’t) on the one hand, and the notionally voluntary nature of mediation on the other.

I do not suggest that a simple refusal to mediate without more is grounds for dismissal. It is a more complicated question than the “average” disobedience issue.  For one thing, the objector (whether manager or employee) may have good grounds to decline.  This would make the refusal reasonable and so not culpable.  Additionally, we must remember that entering a mediation does not fix the problem, but merely begins a process which may well produce a settlement (approximately 80% of employment mediations do), but in no sense definitely will.  There is little ability on the part of the employer to control what a party will or will not agree to within the confidential “bubble” of the mediation, and so no real way of its compelling a reasonable or pragmatic approach.  You may not even know how things went within the mediation or why no agreement was reached, and the mediator ought not to tell you.  That means that there is no necessary connection between whether the employee agrees to mediate and whether a satisfactory resolution is reached.

But that does not mean that the offer of mediation is without teeth if it is unreasonably refused. Take a typical conflict issue, which is damaging the necessary working relationships between Manager A and Subordinate B.  Assuming B is the complainant, ask him what he wants – what would his ideal outcome be?  Secretly, he may want A warned or dismissed, but he is more likely to say that he wants A to behave differently in some respect and for that necessary relationship to be restored.  As employer, you might consider that the problem is a handbags-at-dawn spat which has got out of control or that there is genuinely some work to be done by one or both parties.  In the end, however, the corporate imperative for you is the restoration of the relationship.  You know that a formal grievance process will probably hole that relationship below the waterline and that if ultimately A and B can’t work with each other, one will have to go.

On the face of it, a request to mediate here is clearly a reasonable management request, in particular for A who as manager is under an even stronger duty to subjugate his own feelings to the best interests of the business. If there is a mediation but it fails, neither party can be blamed because what happens in that bubble is confidential.  That leaves you having to resolve the grievance on ordinary principles.  However, if A or B unreasonably refuses to mediate, he takes a clear and non-confidential step directly inimical to the restoration of the relationship which you need as employer.  All else being equal, it would not be hard for you then to blame him for its not being retrievable and to pick him as the one who has to leave as a result.

This is not dismissal for refusing to mediate (i.e. for disobedience), but it could be dismissal for the contribution which a persistent refusal to mediate makes to the irretrievable breakdown of an important workplace relationship (i.e. for “some other substantial reason”).

Of course, all else rarely is equal.  The employer will need to look also at the parties’ respective importance to the business, other evidence for or against and the scope for moving one rather than dismissing him.  In the end, however, it must be the case at its very lowest that the refusal to mediate of a party to a dispute like this puts him at a pronounced disadvantage when it comes to how the employer chooses to break the deadlock.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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