What to Expect From Start to Finish

One of the most common reasons people approach mediation with anxiety is that they do not know what to expect. The process can feel opaque from the outside, particularly to those who have only experienced formal procedures such as grievance hearings or employment tribunal proceedings. Understanding what actually happens in a mediation, step by step, removes a significant source of anxiety and helps both parties engage more effectively with the process.

Workplace and employment mediation share the same broad structure, though they differ in emphasis and in the nature of the outcomes being sought. This chapter describes the typical process for both types, noting where they diverge.

Before the Day: Setting Up the Mediation

1. Initial contact and agreement to mediate

The process begins when both parties agree to participate in mediation and a mediator is appointed. The mediator will typically make contact with both parties, either directly or through whoever has commissioned the mediation, to explain the process, answer initial questions and confirm the practicalities of the session.

2. The mediation agreement

Before the mediation takes place, both parties will usually be asked to sign a mediation agreement. This is a short document that confirms the parties’ agreement to participate, sets out the confidential and without prejudice basis of the process, and clarifies the mediator’s role and the parties’ responsibilities. It is not a settlement agreement. It does not commit either party to any particular outcome. It simply establishes the ground rules for the process.

3. Pre-mediation meetings

Many mediators will hold a brief individual meeting or call with each party before the main session. This pre-mediation conversation serves several important purposes. It allows the mediator to understand each party’s perspective on the dispute, their priorities and their concerns before the session begins. It gives each party an opportunity to ask questions about the process in a setting where they do not need to be guarded about what they say. And it helps the mediator plan how to structure the session most effectively given the dynamics of the particular dispute.

4. Position statements or summaries

Some mediators ask each party to prepare a short written summary of their perspective and their objectives before the session. In employment mediation, there may also be a bundle of relevant documents that both parties and the mediator review in advance. The mediator will advise on what, if anything, should be prepared.

On the Day: The Structure of the Session

1. Opening the session

The mediation session typically begins with the mediator welcoming the parties, either together in a joint opening session or separately in individual meetings, and explaining how the day will work. The mediator will confirm the confidential and without prejudice basis of the process, set out the ground rules for how the session will be conducted and invite any questions before the substantive work begins.

2. Opening statements

In a joint session, each party will usually have an opportunity to make a brief opening statement setting out their perspective on the dispute. This is not an opportunity for cross-examination or for argument. It is an opportunity for each party to be heard by the other directly, which in many disputes is something that has not happened before the mediation. The mediator will manage the session to ensure that the opening statements remain constructive and focused.

Not all mediations include a joint opening session. Some mediators prefer to meet with each party individually from the start, particularly in workplace disputes where the relationship between the parties is very strained or where one party is anxious about being in the same room as the other. The format will be determined by the mediator based on the dynamics of the particular dispute.

3. Private sessions with the mediator

Private sessions, sometimes called caucuses, are the engine of most mediations. In a private session, the mediator meets individually with one party. These conversations are confidential. Nothing said in a private session will be passed to the other party without express permission.

In a private session, the mediator will typically ask the party to expand on their perspective, to explore what they actually need from the process, to think through their alternatives and the risks they face if no agreement is reached, and to consider what movement they might be willing to make and under what conditions. These are often the most productive conversations in the whole mediation, because parties can speak more freely when they are not in the room with the other party.

4. Shuttle and joint sessions

As the mediation progresses, the mediator will move between the parties, carrying ideas and proposals, testing reactions and helping each party to understand the other’s position better. This shuttle process continues until either the parties reach an agreement or it becomes clear that agreement is not going to be achieved on the day.

Where progress is being made, the mediator may bring the parties together again for further joint sessions to address specific issues or to work through the terms of a potential agreement. Whether and when to use joint sessions is a judgment call that the mediator makes based on the dynamics of the particular dispute.

5. Reaching agreement

If the parties reach an agreement, the mediator will help them ensure that the terms are clear, workable and complete. In workplace mediation, the agreement will typically be recorded in writing as a working agreement or mediation outcome document that both parties sign. In employment mediation, the agreement will usually take the form of heads of terms that will be incorporated into a formal settlement agreement drafted by a solicitor and signed with the benefit of independent legal advice.

6. If no agreement is reached

If the mediation does not result in an agreement, the mediator will bring the session to a close. The confidentiality of the process means that nothing said during the mediation can be used in any subsequent formal proceedings. The parties return to whatever process was in place before the mediation, whether a formal grievance procedure, a tribunal claim or something else. The mediator will typically offer a brief debrief to help the parties think about next steps. What to do when mediation does not settle is covered in Chapter 13.

After the Mediation

Where an agreement has been reached, the focus shifts immediately to implementation. In workplace mediation, both parties should be clear about what they have agreed to do and by when. It is worth agreeing a review date, typically a few weeks after the mediation, to check whether the agreement is working as intended and to address any difficulties that have arisen.

In employment mediation, the heads of terms agreed in the session will need to be converted into a formal settlement agreement, which both parties must sign with the benefit of independent legal advice. There is typically a period of a few days to a few weeks between the mediation session and the settlement agreement being finalised. During that period, it is important that both parties behave consistently with the spirit of the agreement reached in the session, even though it is not yet formally binding.

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.