I have recently been asked if resolving workplace disputes by mediation is still viable if one of the parties is suffering from mental health issues. The quick answer is that it makes use of that process even more desirable, but this being Mental Health Week, let’s take a closer look.
The first point to make is that absolutely everyone who turns up as a party to a mediation does so in some degree of heightened mental state or disturbance: uncertainty, fear, aggression, desperation or simply a child-like faith that if they sit in their room long enough the mediator will bring them on a plate a deal they are happy with. The point at which any of those emotional states trip over into something clinically recognisable as a mental health condition and/or a disability is neither clear nor relevant to the mediator. The existence or suspicion of a metal health issue is just something else which he/she must take into account in the conduct of the process, just as for a physical condition or impediment.
In the main, the things which make mediation work for the great majority of parties to it are the very same things which should increase its attractiveness and efficacy for those suffering with a mental health condition. For example:
- The process is non-judgmental. The mediator is not there to allocate blame or to criticise. While he/she will have to pass on responses from the other side which may be hard to hear, the employee still has a safe space within which to receive and digest those messages in his own time.
- The parties are in control of the process. If the employee needs a break, he can have one. If he wants to walk out, he can. If he wants to say things which are important to him to the other side then, within limits, he can do that. If he does not want to see the other side then he probably doesn’t have to. That is not to say that any of these things are necessarily helpful to the progress of the mediation, and the mediator may well seek to persuade him otherwise, but that is still better than its collapsing there and then through the employee’s inability or unwillingness to continue.
- Mediation takes place in a strictly confidential environment, allowing the employee to be less concerned that the stress of the process may lead him to do or say something he fears could be used against him later. Less concern equals less stress equals less chance of his doing so anyway.
- It is possible that he may even hear messages that are more positive than he expected. The employer may express an active wish to work things out with him so that he can come back to work as soon as possible, or it may expressly recognise past successes or efforts which his condition may have led him to think had been ignored or overlooked.
- He may be accompanied and guided throughout by a friend, family member or lawyer for moral and psychological support.
- No-one will impose anything on him. If he is not content with the best that the other side can offer, he doesn’t have to take it. In addition, it should be borne in mind that mediation solutions can be about much more than cash – if the mental health issue is caused or exacerbated by work, for example, solutions could include accommodations to address this. Maybe an agreement for different hours or duties, a change to reporting lines, a transfer, some time off, some form of apology or explanation, and a whole range of other options which an Employment Tribunal simply cannot provide.
- Obviously this is a world away from being trapped alone on the witness stand facing relentless cross-examination in the glare of a public tribunal. Though there is clearly no need to have any form of mental health condition to appreciate that distinction, it will be more than usually valuable for an employee who does.
Two final points for the employer:
- It is of course unnecessary to say that there is a world of difference between having a mental health condition on the one hand and being mentally incapable of contracting on the other. An agreement reached at mediation with an employee who has a mental health condition is usually every bit as enforceable as one with someone does not.
- Because the mediator must be particularly careful to ensure that the employee understands what is happening and the ground rules applicable, he/she may appear superficially to favour the employee and hence potentially prejudice the appearance of neutrality. The sensible employer will appreciate the difference between empathy and sympathy, however, and will not take any such message from the mediators going out of his/her way for an employee who is known to be unwell.