What does mediation involve and are there any drawbacks?Posted in : Seamus Says - Employment Law Discussion on 4 May 2018
Q. ‘An employee contacted the Labour Relations Agency, the LRA, and wanted to take her and another employee that she’s fallen out with through mediation. Frankly, we just want the backbiting to stop. It’s causing a terrible atmosphere in the office. What does mediation involve and are there any drawbacks?’
Seamus: This was the first thing I want to mention about this is we have a proactive employee that has approached the LRA and wants to go down the line of mediation. The most appropriate step for that employee is to approach their employer and give that indication because the key with mediation is that you have to have two willing parties that are willing to engage in mediation.
So, the employer can’t force the employee to engage in mediation. They can certainly encourage and explain the process and what the potential benefits of it would be, but they can’t force it. So, this employee has to approach the LRA directly. But really, they should be going to either HR or to their line manager and advising that there is an issue and they want to resolve it that way.
Scott: Of course, you need the other employee to agree as well. You can have mediation between two employees, but both of them have to agree to go along. And it’s a very confidential situation. So, the employer won’t probably know what the outcome is other than they’ve settled their differences, unless there’s a requirement for some kind of training or anger management or whatever it happens to be between the two employees that comes out of the mediation process itself. So, the employer is taking on trust that in this case, the LRA has mediators, but it could be others that will do the job to bring them together. But the process works.
Seamus: I’ve used it. In terms of mediation, this question is about what it involves and are there any drawbacks to it. Most of the policies that you’ll see in respect of those grievances will automatically have built into them clauses that say mediation is an option and if you’d like to go down the route of mediation, that can be facilitated.
Certainly, I’ve used the Labour Relations Agency in terms of mediation and that has been excellent. It doesn’t always work and you have to accept the limitations in terms of mediation, but my experience has been that it has been very positive through the Labour Relations Agency and they’ll bring the two employees in. They’ll meet with them separately. They’ll get an indication from both employees as to what the issues are, what the problems are.
Often these are communication problems between employees. Often, one employee will not understand what it is they’re doing that is annoying or frustrating the other employee. Sometimes you will get it where both employees know exactly how to push each other’s buttons but there will be root issue and a problem there and really the key for mediation is to find what is the bud of the issue here, how do the issues arise and how can we go about resolving it?
My experience with it has been that there is that separate process that starts, whether the mediator will meet with the party separately. Then there will be an attempt to bring the parties together. So, once the mediator gets to what the reasoning is, they’ll bring the parties together and they’ll have a discussion in and around what might be the best way to resolve those issues. The beauty about mediation is you can really think and step outside the box.
If your alternative to mediation is going through a lengthy, arduous, difficult grievance process where there’s going to be possibly one winner, one loser or no winners, it’s certainly the better option and I think it’s always worth an attempt. I’ve certainly been in positions where I’ve advised clients who have said, ‘Mediation is never going to work. We’re wasting our time with this,’ and they’re very surprised at the outcome in relation to it. In terms of drawbacks . . .
Scott: There are none. It’s fantastic. I’m a mediator, folks. If you want to know more about it, we actually have three videos interviewing Dorcas Crawford, who’s a well-known mediator in Belfast. You’ll find it on the website, just type in ‘mediation’ and the reviews will come up in the resources section as well.
There may be a drawback. Eventually, the solution is in the hands of the two protagonists.
Scott: They have their work cut out. They don’t lose any rights. So, if they want to go through a grievance procedure, they can. In this situation, it would solve an employer from having to deal with an interpersonal dispute. So, there are very few drawbacks there. There’s no real cost. So, if you go outside the LRA, there may be a cost for the mediator and the employer normally pays for that. You don’t pay for the LRA, but there’s a bit of delay at the moment but they’re free.
Scott: There are very few drawbacks, but you’re going to come up with one.
Seamus: The only really drawback is not engaging in mediation in the first place. That’s the main drawback from it. The benefit of it as well for the employer is it’s an entirely confidential process. Sometimes within mediation, the employer will be involved and they’ll be there on a third party basis for the mediator to bring the employer in at the right time, which is usually at the end, but usually it’s a very confidential process.
The employees can speak freely to the mediator. They don’t have to worry about breaches in confidentiality. Any of the mediations that I’ve done, the first thing that you do is sign a confidentiality agreement all parties agree to. The drawbacks are essentially it can fill you full of hope and it can fill you full of . . .
Seamus: Disappointment when it doesn’t work out. Sometimes, this is life. It sometimes doesn’t work out. I suppose the cases where it doesn’t work out is when you know you have a serious problem within your work place. As the employer, it’s better to know that. It’s better to know that from mediation than it is from going through a grievance process and trying to navigate your way through the relationship of two different employees all together.
My experience has always been good. I’ve used the LRA on a private capacity and I’ve done it with others from the bar library in terms of resolving cases. My experience of it is the majority of time it does work out to some extent, but there are those occasions it doesn’t and it’s back to that point because you can bring the horse to the water, you can’t force the horse to drink the water.
Scott: My experience is people are at least left better off in forum. They understand the other person’s point of view. Even if it’s not resolved . . . I’ve noticed a number of ones where it doesn’t resolve on the date, but they go away and think about it and do their own agreement. We’ll leave it there.
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