25 Practical Tips for Getting the Best Outcome in Employment Mediation
These tips are designed for employees, employers and their legal advisers who are preparing
for or participating in employment mediation,
where the focus is on resolving a dispute that has reached or is approaching the stage of
formal legal proceedings, settlement negotiations or exit arrangements. They draw on the
practical realities of how employment mediations succeed and how they fail.
For tips specific to workplace mediation, where the goal is to repair an ongoing working
relationship rather than to settle a legal dispute, see
Chapter 15a.
Before the Mediation
1. Take legal advice before the mediation, not just during it
Going into an employment mediation without a clear understanding of your legal position
is one of the most common and costly mistakes parties make. You need to know the strength
of your claims or defences, the realistic range of outcomes at tribunal, and the likely
costs of getting there. This analysis should be completed before the mediation, not on
the day.
2. Know your BATNA and be honest about it
Your Best Alternative to a Negotiated Agreement, your BATNA, is the benchmark against
which you should assess any settlement offer. Parties who overestimate the attractiveness
of their BATNA, either by being unrealistically optimistic about their chances at tribunal
or by underestimating the costs and stress of getting there, consistently make worse
decisions in mediation. Be honest, not optimistic.
3. Understand the full cost of not settling
The cost of not settling is not just the legal fees of a tribunal hearing. It includes
management time, witness preparation, the stress and disruption of the process, the
risk of an adverse costs order if you behave unreasonably, and the reputational
implications of a public judgment. Factor all of these into your assessment.
4. Establish your settlement range in advance
Before the mediation, establish your opening position, your realistic target and your
absolute bottom line. These three figures should be clearly distinct from each other
and should be grounded in a realistic assessment of the legal and factual position,
not in what you feel entitled to.
5. Ensure the decision-maker has authority to settle on the day
One of the most common reasons employment mediations fail is that the person present
on behalf of the employer does not have authority to agree a settlement, and has to
refer back to someone else who is not in the room. This is both frustrating and
counterproductive. Ensure the right person is present before the mediation begins.
6. Consider what non-financial terms matter to you
Employment mediation is not only about money. The terms of a settlement agreement can
include an agreed reference, a neutral termination date, agreed language about the reason
for leaving, non-derogatory undertakings, the return of property and many other elements
that may matter significantly to one or both parties. Think about what non-financial
terms would make a difference to you before you go in.
7. Review all relevant documentation
Ensure you and your legal adviser have reviewed all relevant documentation before the
mediation, including any tribunal pleadings, the grievance or investigation outcome
letters, relevant correspondence and any documents that are likely to be significant
in the settlement discussion.
8. Think about what the other party actually needs
Even in employment mediation, where the negotiation is more explicitly focused on legal
rights and financial terms, understanding what the other party actually needs from the
settlement, as distinct from their stated position, is valuable. An employee who appears
to be focused entirely on financial compensation may actually need an acknowledgment of
their experience. An employer who appears unwilling to pay may be concerned about
precedent rather than the specific sum involved.
During the Mediation
9. Use the pre-mediation meeting to brief the mediator fully
The pre-mediation meeting with the mediator is your opportunity to give the mediator
a clear picture of your perspective, your priorities and any concerns you have about
the process. Use it fully. The mediator is working for both parties but can only help
you effectively if they understand your situation.
10. Open ambitiously but credibly
Your opening position should be ambitious enough to leave room for movement but
credible enough to be taken seriously. An opening position that is wildly unrealistic
damages your credibility and can set a negative tone for the whole session. Be prepared
to explain the reasoning behind your opening position.
11. Make proposals rather than demands
There is a significant difference between a proposal, which invites engagement, and a
demand, which closes it down. Frame your proposals in a way that signals willingness
to engage with the other party’s position rather than simply restating your own.
12. Move deliberately and purposefully
Every concession you make should be made for a reason and should be accompanied by
a clear signal of what you are expecting in return. Making concessions quickly and
without conditions signals weakness and encourages the other party to wait for further
movement rather than reciprocating.
13. Use private sessions with the mediator to explore options freely
The most productive conversations in employment mediation typically happen in private
sessions with the mediator. Use these sessions to explore options that you would not
put forward directly, to test the mediator’s read of the other party’s position and
to think through the implications of different settlement structures.
14. Reality-test your own position with the mediator
A good mediator will reality-test your position with you in private session. They will
ask you to think through honestly what your alternatives look like if no agreement is
reached. Welcome this conversation rather than resisting it. It is designed to help
you make a good decision, not to pressure you into accepting less than you should.
15. Keep your legal adviser in a supporting role
Where a legal adviser is present, their role is to advise and support you, not to
conduct the mediation on your behalf. Mediations in which legal advisers dominate
the conversation tend to become more adversarial and less productive than those in
which the parties themselves engage directly, with their advisers available for
guidance in private.
16. Stay at the table past the point of apparent impasse
Employment mediations frequently appear to reach impasse in the middle of the day, when
both parties have made their initial movement and the gap between them still seems large.
This is a normal part of the process, not a sign that it has failed. The most important
deals in employment mediation are often done in the late afternoon or early evening.
Stay engaged.
17. Consider the tax treatment of any proposed settlement
The tax treatment of different elements of a settlement payment can make a significant
difference to the net value you receive. For example, the first £30,000 of certain
termination payments may be tax-free, but other elements such as pay in lieu of notice
may be fully taxable. Take advice on the tax implications of any settlement structure
before agreeing to it.
Reaching and Implementing Agreement
18. Agree heads of terms before the session ends
Do not leave the mediation without at least heads of terms, setting out the key elements
of the settlement, signed by both parties. Heads of terms reached in a mediation session
are not usually the final settlement agreement, but they provide a binding foundation
that prevents one party from renegotiating the key terms after the session.
19. Ensure the settlement agreement covers everything
The formal settlement agreement that follows the mediation should cover all relevant
claims, all relevant terms and all the practical matters, such as references, the return
of equipment and the treatment of any outstanding holiday pay or bonus. Take legal advice
on the drafting before signing.
20. Obtain independent legal advice on the settlement agreement
A settlement agreement is not binding unless the employee has received independent legal
advice on its terms and effect. This is a statutory requirement, not a formality.
Do not sign a settlement agreement without having received that advice.
21. Consider the confidentiality obligations carefully
Most settlement agreements contain confidentiality provisions preventing either party
from disclosing the fact or terms of the settlement. Think carefully about what those
provisions mean for you in practice, including whether they prevent you from telling
colleagues, family members or future employers what happened, before agreeing to them.
22. Think about what the reference will say
If an agreed reference is part of the settlement, agree the exact wording before you
sign. A vague commitment to provide a reference is not sufficient. The reference should
be drafted, reviewed and agreed as part of the settlement, not left to be resolved
afterwards.
If the Mediation Does Not Settle
23. Remember the without prejudice protection applies
If the mediation does not settle, neither party can refer to what was said in the session
in any subsequent tribunal proceedings. You are not prejudiced by having participated in
the mediation. You return to the same position you were in before it, but usually with
a clearer sense of where the other party stands.
24. Consider whether a further mediation attempt is worthwhile
A failed mediation does not mean settlement is impossible. Consider whether there are
specific obstacles that could be addressed, whether the timing was simply not right and
whether a further attempt, either with the same mediator or a different one, might
produce a different result.
25. Take stock and review your strategy
After a failed mediation, take time to review your strategy with your legal adviser.
Consider what you learned from the process about the other party’s position and
priorities, and how that information should affect your approach going forward. If you
would like to discuss your options,
contact Robin for a confidential discussion.
Important Disclaimer: This page is provided for general information purposes
only and does not constitute legal advice. Nothing on this page should be relied upon in
respect of your legal rights or obligations. Before taking or refraining from taking any
action in connection with a workplace or employment dispute, you should obtain advice from a
qualified solicitor or barrister with relevant expertise. If you would like advice on your
specific situation,
contact Robin here.