Workplace Mediation in UK – Not at all a Pussycat
Proponents of workplace mediation often stress its confidential and voluntary nature and the ability to fail to agree without there necessarily being any adverse consequences. It is all about listening and rapport and trust, say those commentaries, making the whole process sound as cuddly and unthreatening as your favourite puppy.
In fact, there are a number of situations in which mediation can have real teeth, requiring it to be treated with a proper degree of respect by invitees and parties to it.
Is the process voluntary?
Yes and no. If I am an employer faced with a dispute between two employees, either peers or manager and subordinate, then I have a legitimate interest in seeking to resolve it. Any reasonable instruction I issue to that end is therefore likely also to be a legitimate exercise of my rights as employer. Consequently, any refusal to comply with my reasonable management instruction could technically count as misconduct.
That does of course assume that my instruction to an employee to enter a facilitated discussion with the other party is reasonable in the first place. However, there will be few circumstances where an instruction to two adults to behave like adults and at least try to resolve matters between them where it is to their mutual benefit to do so is not (especially for senior employees) a reasonable one.
Exceptions? Perhaps repeated previous failures to reach agreement, serious harassment, some mental health issues, evidence that the other party has no actual interest in resolution by agreement, for example, but not much else. If you try to reach agreement and fail, then so be it, but if you won’t even try (whether as manager or subordinate) that is something you must be prepared to find levelled against you by your employer.
Of course, this works both ways. If I am a disenfranchised employee on the cusp of resigning and claiming constructive dismissal, then I might approach my employer with a last-ditch offer to try to mediate a solution by which my employment can continue. If my employer turns me down, even though mediation is notionally entirely voluntary, I may be able to use that as the last straw in my argument for an irretrievable loss of trust and confidence. “May”, because if my underlying complaint is not about anything genuine or serious enough to constitute a fundamental breach of contract, then I will not be able to get it there by an unsuccessful request to mediate about it.
Is the process confidential?
Also yes and no. What is confidential in the process is the course of the discussions with the mediator and between the parties. If expressly decided by both parties, then the terms of the resolution may also be confidential. Therefore, if the mediation breaks down, neither party may later rely on the conduct of those discussions to blame the other. For this reason, many mediation agreements expressly prohibit the parties from calling for the mediator or his/her notes as part of any later litigation.
However, the fact that a mediation took place is not usually confidential, and nor normally are either the fact of failure (as opposed to the reasons for it) or the terms of any agreement arising from it. There is no automatic confidentiality obligation either in relation to a request to a party to mediate or his/her response to that.
Even in relation to those discussions conducted within mediation’s confidentiality “bubble”, there are limits. The mediation process allows for (indeed encourages to some extent) a degree of venting. If in the course of that something were to be said or done which would be improper outside the mediation context, it will be little less so within it. A good mediator will tell the parties at the outset that in the mutual pursuit of settlement they may hear things they find hard or do not agree with, but that process still does not legitimise behaviour which is personally insulting, overtly discriminatory or physically threatening. Any such conduct in a mediation could later be disclosed and relied upon by the victim, whether employer or employee.
The parties can agree that the terms of the resolution they reach are confidential, but there are again limits, in that the employer may need to know how two employees resolve matters between them, if either it or they needs to enforce those terms. If the agreement details that the parties will behave differently towards each other going forwards and one defaults on that obligation, then this becomes an issue of poor performance or misconduct just as if that obligation had been incorporated into his/her contract of employment with all the other behavioural rules. The fact that it was put there via a mediation is irrelevant.
What if a confidentiality promise made in the initial mediation agreement or the closing settlement agreement is breached? Much will depend on the facts, but since the commitment essentially becomes part of the employment contract, you could expect the usual contractual consequences to flow from that breach – a misconduct allegation by the employer, a grievance and/or constructive dismissal threat by the employee or in principle an application for an injunction by either.
Despite the superficial fluffiness of the process, therefore, a decision not to participate in mediation may already have costs consequences in some UK courts, and in my view it is only a matter of time before this will apply in the Employment Tribunal too. Abusing the process through breach of confidentiality can come back and bite you, as can defaulting on any other term agreed.
None of this should take away from the merits of mediation as a swift, discreet, effective and economical way of resolving many workplace disputes of otherwise significant destructive potential, but do just remember that one day your puppy’s bark might not be worse than its bite.