Workplace and Employment Mediation: A Complete Knowledge Guide
The Distinction Most People Miss
Workplace conflict costs UK organisations an estimated £28.5 billion each year. Most of that cost is avoidable. Mediation, used at the right time and in the right way, resolves the majority of workplace and employment disputes faster, at lower cost and with better outcomes for everyone involved than formal grievance procedures, disciplinary processes or employment tribunal proceedings.
This guide covers everything employees, employers, HR professionals and legal advisers need to know about workplace and employment mediation in England and Wales. It is built around a distinction that most mediation guides fail to draw clearly: workplace mediation and employment mediation are not the same process. They serve different purposes, operate at different stages of a dispute, require different preparation and produce different kinds of outcome. Understanding which type applies to your situation, and approaching it accordingly, is the foundation of getting the best possible result.
The guide covers the complete journey: from deciding whether to mediate at all, through identifying the right type of mediation, choosing a mediator, preparing strategically, understanding how the process works, negotiating effectively, reaching agreement and implementing it. It also covers what to do when mediation does not settle, how employers can build organisations that resolve conflict earlier and more constructively, and the most common mistakes that cause mediations to fail or produce worse outcomes than they should.
If you need a workplace or employment mediator rather than the knowledge guide, see my mediator page.
Workplace Mediation vs Employment Mediation: What Is the Difference?
Workplace mediation is used where the parties have an ongoing employment relationship and the goal is to repair it. It is voluntary, confidential, future-focused and facilitated by a neutral mediator who does not make findings or impose outcomes. The parties agree the resolution themselves. A successful workplace mediation typically produces a written working agreement setting out how the parties will communicate and work together going forward. ACAS reports that 76% of its mediations result in full or partial resolution. The focus throughout is on enabling the parties to continue to work together effectively.
Employment mediation is used where the primary focus has shifted from repairing the relationship to resolving the dispute itself. It typically arises where the employment relationship has broken down, where a formal grievance has reached an advanced stage, where an employment tribunal claim has been lodged or is being contemplated, or where both parties have accepted that the employment is likely to end and the question is on what terms. A successful employment mediation typically produces a settlement agreement, which is a legally binding document waiving specific employment claims in exchange for agreed terms, usually including a financial payment. Both types of mediation offer significant advantages over formal proceedings. Both are faster, less costly, less adversarial and more likely to produce an outcome that both parties can genuinely accept. The key is knowing which type applies and preparing for it accordingly.
Who This Guide Is For
This guide is written for anyone navigating a workplace or employment dispute in England and Wales who wants to approach mediation with clarity, purpose and the best possible chance of a good outcome. It is relevant to employees who have been told that mediation is available, who are considering raising a grievance, who are in dispute with a manager or colleague, or who are contemplating or facing an employment tribunal claim. It is equally relevant to employers and HR professionals who want to understand when mediation is appropriate, how to commission it effectively and how to build organisations that resolve conflict earlier and at lower cost. Senior leaders and managers who need to make decisions about whether to offer mediation, which type is appropriate and how to prepare will also find it useful. Legal advisers and HR consultants who advise clients on workplace and employment disputes will find it a comprehensive practical reference for the mediation process in both contexts.
About Robin Somerville
Robin Somerville is a practising barrister, CEDR-accredited commercial mediator and independent workplace investigator with over twenty-five years of experience across more than a thousand cases in one capacity or another. He advises and acts for employees, employers and their advisers across the full spectrum of workplace and employment disputes.
Before qualifying as a barrister and mediator, Robin founded, grew and sold three technology businesses, one of which ended in a shareholder dispute that settled at mediation. That commercial experience informs everything he does: he understands what is at stake for the people on both sides of a workplace or employment dispute, not just as a matter of law but as a matter of real life and livelihood.
Robin also acts as an independent external workplace investigator and as a grievance and disciplinary chair. His investigation reports are quality assured by a Crown Court judge. He accepts instructions directly under the direct access scheme, meaning you can instruct him without going through a solicitor first.
For more detail see the commercial mediator page and the direct access barrister page.
Guide Chapters
Introduction to Workplace and Employment Mediation
Chapter 1: What Is Workplace and Employment Mediation?
Chapter 2: Should You Use Workplace or Employment Mediation?
Chapter 3: Workplace Mediation or Employment Mediation: Which Applies to You?
Chapter 4: Mediation, Investigation and Tribunal: Understanding the Landscape
Chapter 5: Timing Your Workplace or Employment Mediation
Chapter 6: How to Choose a Workplace or Employment Mediator
Chapter 7: Preparing for Workplace or Employment Mediation
Chapter 8: How Workplace and Employment Mediation Works in Practice
Chapter 9: Opening Positions, Movement and Negotiation in Mediation
Chapter 10: Workplace Mediation: A Practical In-Depth Guide
Chapter 11: Employment Mediation: A Practical In-Depth Guide
Chapter 12: Confidentiality, Evidence and Legal Risk in Workplace and Employment Mediation
Chapter 13: When Workplace or Employment Mediation Fails to Settle
Chapter 14: Building a Mediation-Ready Organisation: A Guide for Employers
Chapter 15a: 25 Tips for Winning in Workplace Mediation
Chapter 15b: 25 Tips for Winning in Employment Mediation
Chapter 16: 20 Common Mistakes in Workplace and Employment Mediation
Frequently Asked Questions
What is the difference between workplace mediation and employment mediation?
Workplace mediation focuses on repairing a working relationship so the parties can continue working together effectively. It is future-focused and typically produces a written working agreement. Employment mediation focuses on resolving a dispute that has reached or is approaching the stage of legal proceedings, and typically results in a settlement agreement and the end of the employment relationship. Understanding which type applies to your situation is the most important question to answer before entering any mediation process.
Is workplace or employment mediation voluntary?
Yes. No party can be compelled to participate in mediation or to reach an agreement within it. However, unreasonable refusal to engage with mediation can result in adverse costs consequences in tribunal or court proceedings, even where the refusing party ultimately succeeds on the merits of the claim. Courts and tribunals expect parties to have genuinely considered mediation before they litigate.
Is what is said in mediation confidential?
Yes. Mediation takes place on a without prejudice basis. What is said during the process cannot generally be referred to in any subsequent tribunal or court proceedings. This protection is what allows parties to speak freely, make concessions, and explore options without risk. For more detail see Chapter 12 on confidentiality, evidence and legal risk.
Can mediation be used after an employment tribunal claim has been lodged?
Yes. Employment mediation is available at every stage of a tribunal claim, including after proceedings have begun. The majority of employment tribunal claims that settle do so in the period between the claim being lodged and the hearing taking place. ACAS early conciliation is a specific pre-claim process that runs before a tribunal claim is issued, but private employment mediation can be used at any stage.
What is a settlement agreement?
A settlement agreement is a legally binding document in which an employee agrees to waive specific employment law claims in exchange for agreed terms, typically including a financial payment, an agreed reference, and other terms negotiated between the parties. To be enforceable, the employee must receive independent legal advice on the agreement and that advice must be confirmed in writing by a qualified adviser. For more detail see Chapter 11 on employment mediation in practice.
When is the right time to start mediation?
In workplace mediation, earlier is almost always better. Disputes that are mediated early, before positions harden and grievances accumulate, are significantly more likely to result in a genuine working resolution. In employment mediation, the most productive window is usually after the parties have a clear picture of their legal position but before the costs and commitments of formal tribunal proceedings have built up a momentum of their own. For a detailed treatment see Chapter 5 on timing.
How do I choose the right mediator?
The right mediator for a workplace dispute and the right mediator for an employment dispute may be different people. In workplace mediation, experience in facilitating relationship repair and genuine understanding of workplace dynamics matter most. In employment mediation, experience with settlement agreements, employment law context and financial negotiation carries more weight. For a detailed guide see Chapter 6 on choosing a mediator.
What is ACAS early conciliation and how does it relate to mediation?
ACAS early conciliation is a statutory pre-claim process that most claimants must attempt before lodging an employment tribunal claim. It is a form of assisted negotiation conducted by an ACAS conciliator, and it is distinct from private mediation. If early conciliation does not resolve the dispute, a claimant receives an early conciliation certificate that allows them to proceed with their tribunal claim. Private employment mediation can be used at any point, including after early conciliation has been attempted without success.
Can mediation and a workplace investigation run at the same time?
Generally no, and it is usually inadvisable to try. Where a formal investigation is underway, introducing mediation before its conclusions are known risks undermining the integrity of both processes. In serious cases, investigation comes first. Mediation may or may not be appropriate afterwards, depending on findings and the decisions the organisation makes in response to them. For a detailed treatment of how these processes interact see Chapter 4 on mediation, investigation and tribunal.
Can employers be required to offer mediation?
There is no general legal obligation on an employer to offer mediation, though the ACAS Code of Practice on Disciplinary and Grievance Procedures encourages employers to consider all available means of resolving disputes informally, including mediation, before resorting to formal procedures. Failure to follow the ACAS Code can result in tribunal awards being adjusted by up to 25%. Some employment contracts and workplace policies also include mediation provisions. For more detail see Chapter 14 on building a mediation-ready organisation.
Related Resources
This guide sits alongside a number of related resources on this site. If a formal workplace investigation is involved in your situation, the Workplace and Corporate Investigations Guide covers the investigation process in depth. If grievance or disciplinary proceedings are running alongside or instead of mediation, the Grievance and Disciplinary Hearings Knowledge Guide covers that process. For commercial disputes involving a financial or contractual dimension rather than an employment relationship, the Commercial Mediation Knowledge Hub covers that process in full.
Published Resources
My book The Workplace and Corporate Investigator’s Handbook covers the investigation process that frequently precedes or runs alongside workplace and employment mediation, including when to investigate rather than mediate and how the two processes interact. My book Winning at Commercial Mediation covers commercial mediation strategy in detail and many of its principles apply equally to employment mediation.
What My Clients Say
“I cannot recommend the services of Robin Somerville enough. What seemed like a complicated and daunting legal procedure was made stress-free and he ensured a conclusion was reached much quicker than I would have thought. Without doubt, the best money I have ever spent.” Stephanie Bryan, Company Director
“Calm approach finding solutions for tricky problems. Exceptional. Second to none. A really true professional.”
“Outstanding. Beyond reproach. Best possible outcome. Fully recommend. Cannot thank him enough.”
Get in Touch
If you need a workplace or employment mediator, an independent workplace investigator, or a grievance and disciplinary chair, I would be glad to discuss your situation.
Call 020 4538 0246, use the contact form below, or book a call directly.
Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content may not be legally accurate for your specific situation. You must not rely on anything on this page in respect of your legal rights. The law in this area relates to England and Wales only. Always seek independent legal advice from a qualified specialist before taking or refraining from taking any action. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice on your situation, contact me here.
Last Updated on %post_modified% by Robin Somerville