The definition of mediation most commonly used by the Centre for Effective Dispute Resolution CEDR : Effective Dispute Resolution, Mediation, Conflict Management and Training (CEDR) is “a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”.
Over the next ten weeks or so I will look at what that means in practice and hopefully shed some light on the mediation process as it may be applied to employment disputes.
Before getting into the nuts and bolts of a mediation, some basic rules. As this series progresses you will see that these basic rules are more or less sacrosanct, and that they inform almost the whole of the procedure from start to finish.
First, mediation is generally voluntary. Some contracts in the commercial world make mediation a part of the formal dispute resolution mechanism, but this is much less common in UK employment contracts. This means that a party can refuse to participate or can walk out of a mediation at any time, usually quite without sanction in costs or otherwise. However, though mediations do sometimes contain some posturing and threats to walk, it actually happens very much less than you would think.
Second, confidentiality. There are two layers of confidentiality required to make a mediation work. Each party must be confident first that what he says to the mediator about his position will stay secret unless and until he agrees otherwise. Without that safeguard he may feel constrained in voicing ideas or opinions which might help move the matter towards a settlement. Nothing should “leave the room” until the mediator has that party’s clear consent to take it to the other side. In addition, the parties must also jointly feel that they can make suggestions or offers, or even just “vent” at the outset, without this being held against them later should the mediation fail. The intention is to provide a “safe environment”, and this will be potentially fatally threatened by any suggestion that the confidentiality “bubble” around the whole process is not robust.
Third, neutrality. The moment the mediator is perceived (whether correctly or not) to favour one party over the other, the mediation is effectively doomed. This is sometimes hard to avoid, especially where one party (or their representative) is behaving unreasonably in the terms sought, or, in the heat of the moment, rudely or aggressively. The maintenance of strict impartiality, both in fact and in perception, is key. That means the mediator consciously behaving equally to both parties when in joint session, and maintaining an almost infinite patience in one’s dealings with each separately, despite the sometimes almost irresistible temptation to the contrary!
Last, ownership of the solution by the parties. This is what gives the mediation process its power. When I mediate I am not making a ruling on the case, nor finding a solution in my own head and then pushing the parties towards it. The outcome is theirs to agree. Even though I might often think that some other outcome might have been “fairer”, that is not for me to decide and I must not express that view at any stage in the process. While I would encourage him to look at all the options, it is the prerogative of each party to make a “bad” bargain if he is happy with it, and it is not within the mediator’s remit (for fear not least of prejudicing neutrality) to steer him away from it. After all, who is to say it is bad?
In January, against those background principles, I will move on to the first formal procedural step, i.e. the preliminary contact which the mediator makes with the parties to ensure that the scene is all set for the main event.