Mediation Does Not Always Settle

Even well-conducted mediation does not always produce a settlement. ACAS reports that 76% of its mediations result in full or partial resolution. TCM Group reports a 93% resolution rate. CMP reports 92%. These figures are impressive, but they also mean that in a meaningful proportion of cases, mediation does not result in an agreement on the day. Understanding what happens in those cases, and how to position yourself well for what comes next, is an important part of approaching mediation strategically.

It is also worth noting that a mediation that does not settle on the day is not necessarily a failure. Many mediations that do not produce a signed agreement in the session result in a settlement in the days or weeks that follow, as the parties continue to reflect on what they heard in the session and as the reality of the alternative becomes clearer. The mediation may have moved the parties closer together even if it did not close the gap entirely.

Why Mediations Sometimes Do Not Settle

There are many reasons why a mediation may not produce a settlement on the day. The most common include the following.

• One or both parties was not genuinely willing to engage in good faith, either because they attended only to be seen to have tried or because they were using the process to gather information.
• The gap between the parties’ positions was too large to bridge in a single session, even with skilled mediation.
• The timing was wrong. One party was not yet ready to accept the reality of their situation or the risks of their alternative. More time, or a change in circumstances, may be needed before they are ready to settle.
• There was a specific obstacle, such as a third party whose approval was needed for settlement and who was not present, or a legal issue that needed to be resolved before a settlement could be structured.
• The mediator was not the right fit for the particular dispute or the particular personalities involved.
• The dispute involved issues that were genuinely not amenable to resolution through mediation, such as unresolved factual disputes that required a determination by a court or tribunal.

What Happens After an Unsuccessful Mediation

In workplace mediation

Where a workplace mediation does not result in an agreement, the parties return to their pre-mediation position. If a formal grievance procedure was paused during the mediation, it resumes. If no formal procedure was in place, the parties and the organisation need to decide what happens next.

Options may include a further mediation attempt, either with the same mediator or a different one, after a period of reflection. They may include the introduction of a formal procedure that was not previously in place. They may include management intervention to change working arrangements, for example by moving one party to a different team or role. Or they may include acceptance that the employment relationship is not workable and a transition to a conversation about exit, at which point employment mediation may become the more appropriate process.

In employment mediation

Where an employment mediation does not result in a settlement, the formal process that was in place before the mediation resumes. If a tribunal claim was lodged, it continues to progress toward a hearing. If the mediation took place before a claim was lodged, the employee will need to decide whether to pursue a claim through ACAS early conciliation and, if that does not resolve the matter, through the tribunal.

One important practical point is that the without prejudice protection that applies to what was said in the mediation continues to apply after the mediation fails. Neither party can refer to what was said in the mediation session, or to offers that were made, in any subsequent tribunal proceedings. This means the parties return to the position they were in before the mediation, without either side having been prejudiced by their participation in it.

Settlement After a Failed Mediation

A failed mediation is not the end of the possibility of settlement. Many cases that do not settle in the mediation session settle in the weeks or months that follow. The session will often have clarified the issues, given each party a better understanding of the other’s perspective and narrowed the range of disagreement, even if it did not close it entirely.

Parties should not treat a failed mediation as an indication that settlement is impossible. They should consider whether there are specific obstacles to settlement that could be addressed, whether the timing was simply not right and whether a further attempt at mediation might be productive once those obstacles have been resolved.

When Formal Proceedings Are the Right Path

There are cases in which formal proceedings, whether a tribunal hearing, a formal investigation or a disciplinary process, are the appropriate resolution. Where one party has engaged in conduct that requires a formal determination of what happened and what consequences follow, that determination cannot be substituted by a negotiated agreement. Where an employee has suffered discrimination or a serious breach of their rights that needs to be formally acknowledged, the tribunal process may be the right path even if it is more costly and uncertain than settlement.

The decision about whether to pursue formal proceedings after a failed mediation is one that should be made with the benefit of legal advice. If you are in that position, contact Robin for a confidential discussion about your options.

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.