What Mediation Is

Mediation is a structured, voluntary and confidential process in which an independent, neutral third party helps people in dispute communicate more effectively, understand each other’s perspectives and, where possible, reach a resolution they can both accept. The mediator does not impose a decision. The mediator does not act as a judge, an arbitrator or an investigator. The outcome, if one is reached, belongs entirely to the parties.

In the workplace context, mediation is used as an alternative to formal procedures such as grievance and disciplinary processes, and as an alternative or complement to formal workplace investigations. It is faster, less costly, less adversarial and, in most cases, significantly more likely to produce an outcome that both parties can live with. According to ACAS, workplace conflict costs UK organisations an estimated £28.5 billion each year, equivalent to around £1,000 per employee. Mediation is one of the most effective tools available for reducing that cost.

It is also important to be clear about what mediation is not. It is not a disciplinary hearing. It is not an investigation into who did what or who was at fault. It is not a grievance procedure. It is not legally binding in the way that a court order or arbitration award is, unless the parties choose to formalise any agreement they reach. And it is not compulsory, even where an employer or a court encourages its use.

The Two Types: Why the Distinction Matters

One of the most important things to understand about mediation in the employment context is that the word covers two distinct processes. They share a common structure but serve fundamentally different purposes, arise at different stages and produce different kinds of outcome. Getting them confused, or being advised to use one when the other is more appropriate, is one of the most common and costly errors in workplace dispute management.

Workplace mediation is used where the parties are still in an ongoing employment relationship and the goal is to repair it. It is future-focused. The mediator helps the parties understand what has gone wrong between them, what each of them needs going forward, and how they can work together more effectively. The mediator does not investigate the past, make findings about what happened, or tell the parties what a fair outcome would be. The process is designed to restore a functional working relationship, not to adjudicate on the rights and wrongs of the dispute.

Employment mediation is used where the relationship has broken down to the point where its continuation is no longer the primary objective, or where formal or legal proceedings have begun or are being contemplated. The focus shifts from how the parties will work together in future to how they will resolve the dispute itself. This typically means discussions about exit terms, financial settlement, settlement agreements and the withdrawal of employment tribunal claims. Employment mediation often takes place in the shadow of litigation, and the parties’ legal positions and rights will usually be more visible in the room.

The practical differences between the two types are explored in depth in Chapter 3, which is devoted to helping you identify which type applies to your situation. For now, the key point is that these are different processes, not different labels for the same thing.

The Core Characteristics of Mediation

1. Voluntary

Mediation is voluntary. No party can be compelled to take part, and no party can be compelled to reach an agreement. Either party can withdraw at any stage without penalty, though unreasonable refusal to engage with mediation can have consequences, particularly in the employment tribunal context, where tribunals can take a dim view of a party who declined a reasonable offer to mediate.

2. Confidential

Everything said during mediation is confidential. This applies both to what is said in private meetings between one party and the mediator, and to what is said in any joint sessions. The mediator will not disclose to the other party anything said in a private session without express permission. And what is said during mediation cannot generally be used as evidence in any subsequent proceedings. This protection is what allows people to speak freely, acknowledge difficulties and explore options that they might not be willing to put in writing or say in a formal hearing.

3. Without prejudice

Mediation typically takes place on a without prejudice basis. This means that offers made, concessions explored and positions taken during the mediation cannot be referred to in any subsequent tribunal or court proceedings. The legal framework around confidentiality and without prejudice protection in mediation is covered in detail in Chapter 12.

4. Impartial

The mediator is neutral and impartial. They do not represent either party, do not advocate for any particular outcome and do not take sides. Their role is to create the conditions in which both parties can communicate, to help each party understand the other’s perspective, and to assist the parties in identifying options for resolution. How a mediator does this in practice, and what good mediation looks like from the inside, is covered in Chapter 8.

5. Non-binding unless agreed

Mediation does not produce a binding outcome unless the parties choose to create one. If the parties reach an agreement, they can choose to record it in writing. In employment mediation, that agreement will often take the form of a formal settlement agreement, which is legally binding and brings any associated tribunal claim to an end. In workplace mediation, the agreement is typically a written plan covering how the parties will work together going forward, which may or may not have formal legal force depending on how it is drafted and what it covers.

6. Flexible

Mediation is considerably more flexible than formal procedures. The mediator can adapt the process to the needs of the parties and the nature of the dispute. Sessions can be conducted in person, online or in a hybrid format. The process can involve private meetings between each party and the mediator, joint sessions with all parties present, or a combination of both. It can take place over a single day or across a series of shorter meetings. This flexibility is one of mediation’s significant advantages over the rigid structure of formal grievance and disciplinary procedures or tribunal proceedings.

How Mediation Differs From Other Workplace Processes

Mediation and grievance procedures

A grievance procedure is a formal process in which an employee raises a complaint and the employer investigates and decides whether it is upheld. It is retrospective, rights-focused and produces a decision that one or both parties may find unsatisfactory and may wish to appeal. It creates a formal record and can damage working relationships irreversibly. Mediation is none of those things. It does not produce a decision. It does not determine whether a grievance is upheld or not. It focuses on how things will work in future, not on who was right or wrong in the past. Used at the right stage, mediation can resolve the underlying issues that gave rise to a grievance without the damage that a formal procedure typically causes. The relationship between mediation and grievance and disciplinary procedures is explored further in Chapter 4.

Mediation and workplace investigations

A workplace investigation is a formal fact-finding process. The investigator gathers evidence, interviews witnesses and produces findings about what happened. Mediation does not do any of those things. It does not establish facts, make findings or apportion blame. Where a formal investigation is necessary, for example because there are serious allegations of misconduct, safeguarding concerns or potential criminal conduct, mediation is unlikely to be appropriate at the investigation stage. However, mediation may have an important role to play once an investigation is concluded, depending on what the investigation found and what the parties want to happen next. The interaction between investigation and mediation is examined in Chapter 4.

Mediation and employment tribunal proceedings

Employment tribunal proceedings are adversarial, public and decided by a panel that the parties have no control over. The outcome is imposed, not agreed. The process is slow, costly and stressful for everyone involved. Even a party that wins at tribunal frequently finds that the outcome does not fully reflect what they actually wanted. Mediation offers an alternative route in which the parties retain control, the process is private and the outcome is one they have chosen rather than one that has been imposed on them. Even where tribunal proceedings have already begun, mediation remains available and is frequently used to settle claims before a hearing takes place. The relationship between mediation and the tribunal process is covered in Chapter 4.

What a Mediator Actually Does

A mediator’s role is often misunderstood. Many people assume the mediator will hear both sides, assess the merits of each position and recommend a fair outcome. That is not what mediators do, and a mediator who operates in that way is not conducting a mediation in any meaningful sense.

What a mediator actually does is create the conditions for the parties to resolve their own dispute. They manage the process. They help each party feel heard. They ask questions that help each party understand their own interests and the interests of the other side. They identify common ground and areas of potential movement. They reality-test positions by helping parties think through the consequences of not reaching agreement. And they help the parties move from entrenched positions toward a conversation about what each of them actually needs.

A good mediator brings skill, patience and experience to a process that can be emotionally charged and practically complex. Choosing the right mediator for your situation is one of the most important decisions you will make in the whole process. That is covered in detail in Chapter 6.

What Mediation Can and Cannot Achieve

Mediation can achieve a great deal. In workplace mediation, it can restore a working relationship that appeared to have broken down irretrievably, resolve a grievance without the damage a formal procedure would cause, help two colleagues who have lost trust in each other find a way to work together again, and give both parties a sense of being heard and understood in a way that formal processes rarely provide. TCM Group, one of the UK’s leading workplace mediation providers, reports a resolution rate of 93% across its caseload. ACAS reports that 76% of its mediations result in full or partial resolution. CMP reports that 92% of its mediations reach an agreed outcome.

In employment mediation, it can settle a tribunal claim at a fraction of the cost of litigation, produce a settlement agreement that reflects the parties’ actual interests rather than their legal entitlements, allow both parties to move on without the reputational and financial damage of contested proceedings, and give an employee a voice and a degree of control over their exit that a tribunal judgment would not provide.

What mediation cannot do is guarantee a particular outcome, force a party to agree to anything, establish the truth of what happened, or substitute for a formal investigation where one is genuinely required. It also cannot work where one or both parties are not engaging in good faith, where there are serious and unresolved safeguarding concerns, or where the power imbalance between the parties is so significant that meaningful dialogue is not possible. The question of when mediation is and is not appropriate is the subject of Chapter 2.

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.