The Most Costly Errors in Workplace and Employment Mediation

Most of the mistakes that cause mediation to fail, or to produce a worse outcome than it should have, are predictable and avoidable. They stem from misunderstanding what mediation is, from poor preparation, from common errors in negotiation judgment or from emotional reactions that override good decision-making. This chapter identifies the 20 most common mistakes in both workplace mediation and employment mediation, with brief guidance on how to avoid each one.

Mistakes Before the Mediation

1. Failing to prepare at all

Many parties attend mediation without having done any meaningful preparation. They have not thought through what they want, what they are willing to accept, what the other party needs or what their alternatives are. The result is that they make poor decisions in the room, either conceding too much too quickly or refusing reasonable proposals because they have no framework for evaluating them. Preparation is covered in detail in Chapter 7.

2. Confusing workplace mediation with employment mediation

Approaching a workplace mediation as though it were an employment mediation, or vice versa, produces fundamentally the wrong kind of conversation. A party who approaches a relationship-focused workplace mediation with a purely legal and financial mindset will undermine the process. A party who approaches an employment mediation without any understanding of their legal position will be at a significant disadvantage. Know which type of process you are in before you start. Chapter 3 covers this in full.

3. Using mediation to delay rather than to resolve

Agreeing to mediation as a tactic to buy time, rather than with a genuine intention to engage with the process, is both ethically wrong and strategically counterproductive. Mediators are experienced at identifying parties who are not engaging in good faith, and a failed mediation attributable to one party’s bad faith will often make the subsequent formal process harder and more expensive for that party.

4. Failing to take legal advice before employment mediation

In employment mediation, going in without a clear understanding of your legal position is a serious mistake. You cannot assess whether a settlement offer is reasonable if you do not know what you could realistically achieve at tribunal. You cannot evaluate the tax implications of different settlement structures without advice. And you cannot make an informed decision about whether to sign a settlement agreement without understanding what you are waiving.

5. Sending a representative without authority to settle

An employer who sends a representative to a mediation without genuine authority to agree a settlement is wasting everyone’s time. If every proposal has to be referred back to someone who is not in the room, the process cannot function as it should. The right person with the right authority must be present.

6. Choosing the wrong type of mediator

A mediator who is excellent in commercial disputes may not be the right choice for a sensitive workplace relationship dispute, and vice versa. Choosing a mediator without considering whether they have relevant experience in your specific type of dispute is a significant and avoidable mistake. See Chapter 6 for a full framework for making this choice.

Mistakes During the Mediation

7. Opening with an unrealistic position

An opening position that is so extreme as to be incredible does not create room for negotiation. It creates an atmosphere of unrealism that can derail the process before it has properly begun. Open ambitiously but credibly. Your opening position should be one that you can justify with a coherent rationale.

8. Refusing to listen to the other party

Parties who spend the entire mediation composing their own next statement rather than genuinely listening to the other party miss some of the most valuable information that mediation can provide. What the other party says about their experience, their needs and their concerns is essential data for understanding how a resolution might be reached.

9. Conflating acknowledgment with agreement

Acknowledging that you understand why the other party feels the way they do is not the same as agreeing with their account of events or accepting liability for anything. Parties who refuse to acknowledge the other person’s perspective at all, out of fear that doing so will be seen as an admission, miss one of the most powerful tools available to them in a workplace mediation.

10. Making concessions that cannot be sustained

Agreeing to something in the mediation room that you cannot genuinely commit to, either because you know you will not be able to implement it or because you are agreeing under pressure rather than out of genuine intention, is one of the most common causes of post-mediation breakdown. Every commitment you make must be one you can and will honour.

11. Allowing legal advisers to take over the process

In employment mediation, legal advisers play an important role. But when they dominate the process, they can inadvertently convert a mediation into a quasi-litigation in which the parties’ human needs and underlying interests are lost behind a wall of legal argument. Legal advisers should support and advise their clients, not conduct the mediation on their behalf.

12. Focusing entirely on the past

Mediation works best when it is future-focused. Parties who spend the entire session relitigating every incident, every grievance and every perceived wrong make it much harder to reach an agreement about what happens next. Acknowledge the past, but keep the primary focus on what a workable future looks like.

13. Walking away from impasse too early

Apparent impasse in the middle of a mediation session is completely normal. It is not a sign that the process has failed. It is a sign that the easy movement has been made and that the harder, more important work of bridging the remaining gap is about to begin. Parties who walk away at the first point of impasse almost always regret it.

14. Failing to use private sessions fully

The private session with the mediator is the most valuable part of most mediations. It is where you can speak freely, explore options without committing to them and get the mediator’s read of how the other party is positioned. Parties who use private sessions to simply restate their position, rather than to explore options and think creatively, miss most of the value that mediation offers.

15. Treating every proposal as a trick

Parties who approach the other side’s proposals with deep suspicion, and who interpret every concession as a sign of weakness rather than an invitation to engage, tend to be the parties who walk away from mediations that could have settled. Take proposals at face value until you have reason not to.

Mistakes at the Settlement Stage

16. Leaving without a written record

Leaving a mediation with only a verbal agreement, or with each party’s individual recollection of what was agreed, is a significant risk. Memories differ, particularly under stress. Always insist on a written record of what has been agreed before you leave the room.

17. Signing a settlement agreement without independent legal advice

In employment mediation, a settlement agreement is not legally enforceable unless the employee has received independent legal advice on its terms and effect. More practically, you should never sign a document waiving significant legal rights without understanding what you are giving up and whether the terms offered are appropriate for your situation.

18. Agreeing a reference without specifying the wording

A commitment to provide a reference without agreeing the exact wording is not a useful commitment. Always agree the precise terms of any reference as part of the settlement package, and ensure those agreed terms are included in the settlement agreement itself.

19. Ignoring the tax implications of the settlement

The tax treatment of different elements of a settlement payment can significantly affect the net value of the deal. Do not assume that the whole payment is tax-free. Take specific advice on the tax implications of the settlement structure before signing.

20. Treating a failed mediation as the end of the road

A mediation that does not produce a settlement on the day is not the end of the possibility of settlement. Many disputes settle in the days or weeks after a mediation that did not conclude with a signed agreement. Review your position, consider what you learned from the process and be open to further discussions. If you need guidance on what to do after an unsuccessful mediation, 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.