Three Different Processes, Three Different Purposes

Workplace and employment disputes rarely involve just one process. Most serious disputes
involve a combination of mediation, formal investigation and, potentially, employment
tribunal proceedings at different stages. Understanding how those three processes relate
to each other, when each is appropriate, and how they interact is essential for anyone
navigating a complex workplace dispute.

The three processes are not alternatives to each other in any simple sense. They serve
different purposes. They operate at different stages. And they are not mutually exclusive.
A formal investigation may be necessary before mediation can usefully take place. Mediation
may prevent a tribunal claim from being pursued. A tribunal claim may be settled through
employment mediation even after proceedings have begun. Getting the sequencing right is
one of the most important decisions in managing a workplace dispute well.

Mediation and Workplace Investigations

A workplace investigation
is a formal, structured fact-finding process. Its purpose is to gather evidence, interview
witnesses and produce findings about what happened. An
independent external investigator
may be appointed where the allegations are serious, where there is a risk of bias if the
investigation is conducted internally, or where the seniority of those involved makes
internal investigation inappropriate.

Mediation and investigation are designed for different purposes and should not be confused
or conflated. An investigation seeks the truth. Mediation seeks a resolution. An
investigation produces findings that determine what happened. Mediation produces an
agreement about what happens next. The two processes rest on fundamentally different
principles and cannot sensibly be conducted simultaneously, as the confidentiality and
without prejudice protections that make mediation work are incompatible with the evidence-
gathering function of an investigation.

In general terms, the right sequencing is as follows.

• Where the allegations are serious enough to require investigation, the investigation
  should be completed before mediation is considered.
• Where the allegations do not require a formal investigation, mediation may be
  appropriate immediately and may resolve the matter without any formal process
  being needed at all.
• Where an investigation has been completed and the findings are known, mediation may
  have an important role in determining what happens next, even where formal disciplinary
  action is also being taken.

The question of when an investigation is required rather than mediation being the first
response is explored in Chapter 2.
The companion guide on
workplace investigations
covers the investigation process itself in full.

Mediation and Grievance or Disciplinary Procedures

The relationship between mediation and
grievance and disciplinary procedures
is one of the most commonly misunderstood aspects of workplace dispute management. Many
employers and employees assume that once a formal grievance has been raised, mediation
is no longer available or appropriate. That is not the case.

Mediation can be offered and used at almost any stage in a grievance or disciplinary
process, provided both parties are willing to engage with it and the nature of the
allegations does not make formal investigation unavoidable. ACAS guidance explicitly
encourages employers to consider mediation at any stage of a dispute, including after
a grievance has been raised. The ACAS Code of Practice on Disciplinary and Grievance
Procedures states that employers and employees should always consider whether mediation
or another informal resolution might be appropriate.

Where mediation is introduced during an ongoing formal procedure, the procedure is
typically paused while mediation takes place. If the mediation resolves the dispute,
the formal procedure will usually be withdrawn. If it does not, the formal procedure
resumes. The parties should agree clearly in advance what will happen to the formal
procedure during the mediation and what the consequences of a failed mediation will be.

Mediation and the Employment Tribunal

Employment tribunal proceedings are public, adversarial and decided by a panel that the
parties have no control over. The process is slow, expensive and stressful. Preparing
for a tribunal hearing requires significant management time, legal expenditure and
disclosure of documentation and information that many employers and employees would
prefer to keep private. Even where a party succeeds at tribunal, the outcome frequently
falls short of what they actually wanted, whether in terms of compensation, reinstatement
or vindication.

Mediation is available at every stage of a tribunal claim. It can be used before a claim
is lodged, in which case it may prevent the claim from being made at all. It can be used
after a claim has been lodged but before a hearing date, which is when the majority of
employment tribunal claims that settle actually do so. And it can even be used after a
hearing has begun, if a settlement becomes possible during the proceedings.

ACAS offers a free early conciliation service, which parties must generally complete
before lodging an employment tribunal claim. That process is a form of conciliation rather
than mediation in the strict sense, and it operates on a different basis, but it reflects
the same underlying principle that resolution between the parties is generally preferable
to a tribunal determination.

Once a tribunal claim has been lodged, ACAS can still assist with settlement. In addition,
the parties may agree to use a private mediator to conduct an
employment mediation. Many employment tribunal
claims are resolved through this kind of private mediation, which gives the parties more
control over the process and the outcome than ACAS conciliation typically provides.

The Consequences of Unreasonably Refusing to Mediate

The courts and tribunals in England and Wales have consistently emphasised that parties
to a dispute should consider mediation seriously at every stage. The consequences of
unreasonable refusal to engage with mediation can be significant.

In civil litigation, the leading case of Halsey v Milton Keynes General NHS Trust [2004]established that a party who unreasonably refuses to mediate may be penalised in costs
even if they succeed in the litigation. Subsequent cases have reinforced and extended
that principle. In the employment tribunal context, the position is somewhat different,
as costs orders are not the norm, but a tribunal can and does take into account the conduct
of the parties in deciding whether to award costs. Unreasonable refusal to consider
mediation is conduct that a tribunal may treat as relevant to a costs application.

Beyond costs, there is also a reputational dimension. An employer who is seen to have
refused a reasonable opportunity to resolve a dispute through mediation may find that
this affects the tribunal’s assessment of their conduct more broadly, and may face
adverse comment in any tribunal judgment that is published. The key cases relevant to
workplace and employment mediation are covered in
Chapter 17.

Getting the Sequence Right

The most important practical takeaway from this chapter is that mediation, investigation
and tribunal proceedings each have their place, and the skill lies in knowing which
process is appropriate at which stage. The following general principles provide a starting
framework.

• Where there is a communication breakdown or relationship difficulty without serious
  misconduct allegations, consider mediation first, before any formal process.
• Where there are serious misconduct or safeguarding allegations, investigate first.
  Consider mediation once the investigation is complete.
• Where a grievance has been raised, consider whether mediation could resolve it before
  the formal procedure reaches a hearing stage.
• Where a tribunal claim has been lodged, consider employment mediation alongside or
  instead of relying on ACAS conciliation alone.
• At every stage, take legal advice about the implications of the process you are in
  and the options available to you.

If you are uncertain which process is right for your situation, or how mediation fits
alongside a formal investigation or tribunal proceedings that are already underway,
contact Robin for a confidential discussion.
Robin acts as both a mediator
and an independent workplace investigator,
and is well placed to advise on how the two processes interact in practice.

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.