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Workplace Mediation Agreements – Drawing the Line at Drawing a Line

If you try to mediate a workplace clash, then the hardest part is often to get the parties to focus on the future of that relationship, not the recent past leading to its breakdown. For so long as one or both find themselves unable to let go of that past, there will be obvious difficulties in establishing a new and untainted platform from which to move forward.

For that reason, you sometimes see in mediated agreements an express term that the parties will “draw a line under the past”, or some similar phrase. Sometimes it is not stated expressly, but is nonetheless an implicit part of the agreed arrangement working successfully in practice. Either way, what does “drawing a line” actually mean? What level of obligation does it impose on the signatories to the agreement? Should you seek to include it expressly in your settlement terms, or to leave it unsaid?

First, a couple of things that “drawing a line under the past” in a workplace mediation agreement does not mean. It does not mean that the individual is being asked to agree that what he says happened in the past did not happen, or that he had no basis to be unhappy about it, or that he has to forget it all. It does not mean that he is waiving his right to refer back to those events if the mediation agreement comes unravelled in practice. It does not mean that, internally at least, he cannot continue to bear resentment towards the other party.

What it does mean, however, is that if the future working arrangements agreed at the mediation are complied with by the other side and if that helps the working relationship stagger back onto its feet again, then he will not shatter that fragile progress by bringing that past back onto the table. That might be via some formal complaint or grievance, or even just by bringing it up in conversation with the other side, as either will necessarily force them to defend themselves and then off we go again.

In other words, it should boil down to a relatively simple question: if the other party to the mediation does as they have agreed, can you trust yourself and the process enough to swallow (outwardly at least and conditionally only) your perhaps entirely justified unhappiness about events past? Or do you feel so strongly about the situation that your are absolutely compelled to seek a formal resolution regardless of the damage it will do to the working relationship? If that is genuinely your position, some might say that you shouldn’t mediate, that you are just wasting everyone’s time and instead that it might best all round to get on with your grievance and take your chances there. Before you go that way, however, think on these two points: first, you can’t really be sure what your position is until you have heard what the other party has to say in the mediation. Second, if all that stands between your employer and a functioning resolution of a workplace dispute is your refusal to look forwards rather than backwards, then you may find that whatever your personal perception of the rights and wrongs of the matter, it is actually you who have become the problem.

So if you can contain yourself long enough to give the arrangements agreed a chance to work, and you can adopt a professional exterior while doing so, then don’t be concerned by committing yourself to drawing that line. You are agreeing to do something essential to the mediation’s success, but not at any cost to your own position should the wheels come off later.

Which takes us to whether that obligation should be express or left implicit. Ultimately, this is obviously a matter for the parties themselves, but in my view express is the way to go. First, it is a silent reminder to yourself, when your resolve begins to wobble, that that is what you agreed to. Second, it is a visible sign to the other party of your willingness to do what is necessary, however hard, to put the past behind you.

 

© Copyright 2018 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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