Why the Distinction Matters in Practice

The distinction between workplace mediation and employment mediation is not merely academic. It determines what kind of mediator you need, what the process will look like, what you should be preparing for, what a successful outcome looks like and what legal protections apply. Being in the wrong type of mediation, or approaching one type as though it were the other, is one of the most common reasons mediation fails to deliver what the parties actually needed.

Most people who find themselves in a workplace or employment dispute do not know that the distinction exists. They are told that mediation is available and they either accept or decline it without understanding what kind of mediation is being proposed or whether it is suited to their situation. This chapter gives you the tools to make that assessment yourself.

Workplace Mediation: The Core Characteristics

Workplace mediation is used where the parties are in an ongoing employment relationship and the primary goal is to repair or improve that relationship so that both parties can continue to work together effectively. It is future-focused. The mediator’s role is not to investigate what happened or to determine who was right, but to help the parties understand each other’s perspectives, identify what each of them needs going forward and agree on a practical way forward.

The key indicators that workplace mediation is appropriate include the following.

• Both parties are still employed by the same organisation.
• The working relationship has broken down or become strained, but continuation is still the intended or desired outcome for at least one party.
• The dispute is rooted in communication difficulties, misunderstanding, a personality clash or a deterioration in the working relationship rather than in a specific allegation of serious misconduct.
• No formal grievance has been raised, or if one has been raised, it has not yet progressed to a stage where formal findings are required.
• There is no active employment tribunal claim.
• The employer wants to resolve the matter informally and avoid the cost and disruption of formal procedures.

The outcome of successful workplace mediation is typically a written agreement, sometimes called a mediation agreement or a working agreement, which sets out how the parties will communicate and work together going forward. It may cover things like how they will raise concerns with each other, how work will be divided or managed, what changes to working arrangements might help and what each party commits to doing differently. It does not usually involve financial settlement or the withdrawal of legal claims, unless those issues have arisen in the course of the mediation and the parties choose to address them.

Employment Mediation: The Core Characteristics

Employment mediation is used where the primary focus has shifted from repairing the working relationship to resolving the dispute itself. This typically arises where the relationship has broken down irreparably, where the employee has resigned or is contemplating resignation, where a formal grievance has been raised and is progressing through the organisation’s procedures, where an employment tribunal claim has been lodged or is being contemplated, or where both parties have effectively accepted that the employment is likely to come to an end and the question is on what terms.

The key indicators that employment mediation is appropriate include the following.

• The working relationship has broken down to the point where continuation is no longer the realistic or desired outcome for one or both parties.
• An employment tribunal claim has been lodged or is being actively considered.
• A formal grievance has been raised and the parties are at or approaching a formal hearing stage.
• The employee has resigned or is in the process of doing so, and there are live questions about their exit terms.
• Settlement discussions are underway or have been proposed, including discussions about a settlement agreement or compromise agreement.
• Legal advisers are involved on one or both sides.
• The dispute has a significant financial dimension, including claims for loss of earnings, discrimination compensation or contractual entitlements.

The outcome of successful employment mediation is typically a settlement agreement, which is a legally binding document in which the employee agrees to waive their right to bring certain employment claims in exchange for agreed terms, which usually include a financial payment. A settlement agreement must be signed by the employee and their independent legal adviser to be enforceable. The mediator does not draft the settlement agreement but can assist the parties in reaching agreement on its terms. The mechanics of settlement agreements are covered in Chapter 11.

The Grey Area: When It Is Not Immediately Clear

Not every situation falls neatly into one category or the other. There are many cases where the parties start in workplace mediation and the process reveals that the relationship is not salvageable, shifting the conversation toward exit and settlement. There are also cases where an employee has lodged a tribunal claim but would genuinely prefer to return to work on different terms if that were possible, making a combined approach relevant.

The following scenarios illustrate how the assessment should be made in practice.

Scenario A: Ongoing conflict between a manager and an employee

A manager and a team member have had a deteriorating relationship for several months. There have been heated exchanges, complaints about management style and concerns about workload allocation. No formal grievance has been raised. Both parties are still employed and both say they want to resolve the situation. This is a clear candidate for workplace mediation. The focus should be on understanding what has gone wrong and building an agreement about how the working relationship will be managed going forward.

Scenario B: Formal grievance and potential tribunal claim

An employee has raised a formal grievance alleging bullying and constructive dismissal. They have taken legal advice and their solicitor has written to the employer indicating that a tribunal claim may follow if the matter is not resolved. The employee has been on sick leave for three months and says they do not feel able to return to their previous role. This is a candidate for employment mediation. The conversation will be centred on the terms on which the employment relationship will end, including financial settlement and references, rather than on how the parties will work together in future.

Scenario C: The ambiguous middle ground

An employee has raised a grievance but has not yet decided whether to pursue a tribunal claim. They say they would prefer to return to work if matters could be resolved, but they are also aware that they have potential legal claims and have taken initial legal advice. The employer is uncertain whether the employment relationship is salvageable. This situation may benefit from a preliminary conversation with a mediator about which type of process is most appropriate before any formal mediation session is arranged. A skilled mediator will be able to help the parties think through which type of process is most likely to serve their interests. Robin is available for a confidential preliminary discussion in exactly these circumstances.

Questions to Ask Before Agreeing to Mediate

Before agreeing to any form of mediation, whether as an employer or an employee, it is worth asking the following questions clearly and getting clear answers.

• What type of mediation is being proposed, and is it focused on repairing the relationship or on resolving a legal or financial dispute?
• Is the mediator experienced in the type of mediation being proposed?
• What is the anticipated outcome, and is that outcome aligned with what you actually want from this process?
• What will happen to the formal procedure, grievance or tribunal claim during the mediation, and will it be paused, withdrawn or left to run in parallel?
• Is the mediation being conducted on a without prejudice basis, and what does that mean in practice for what can and cannot be said?
• Who is paying for the mediation, and what are the financial implications if it does not result in an agreement?

Choosing the right mediator for the type of process you are in is covered in detail in Chapter 6. Preparing for the process once you have identified the right type is covered in Chapter 7.

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.