As a mediator I am qualified to mediate disputes in the following areas:-
- Civil
- Commercial
- Workplace
- Employment
Many people (including fellow mediators) have asked me what the difference is between workplace mediation and employment mediation.
The answer is they’re intrinsically linked but also completely different!
Workplace mediation is what people would generally expect - it’s all about building the future working relationship. Usually, it involves employees who have disputes with each other or with their employer. Often these mediations occur following (but preferably before) formal grievances.
Employment mediation is when litigation is in play - cases such as unfair dismissal, discrimination or constructive dismissal. Many people wrongly think that ACAS early conciliation is mediation - it isn’t - far from it! For more information on this, see my blog about there being no ‘M’ in ACAS for a reason.
The reality is that some of the mediations we do at Pragmatism are both - sometimes in parallel and other times sequentially.
Let me give you a real-life example by telling you about a case which switched from workplace mediation to employment mediation, all within the same day…
The employee had registered a grievance against the manager for sex discrimination, based on her gender and sexual orientation.
The grievance concluded in the same way that so many do - that there was a “lack of evidence to prove” the allegations.
She had appealed against the outcome of the grievance and as they usually do, the appeal agreed with the original outcome.
During her absence she had submitted a very detailed Subject Access Request (SAR) - quite a common occurrence when employees are increasingly frustrated.
This was a workplace mediation, as the required outcome from the employer was that the employee and her manager built an amicable and professional working relationship.
During a private conversation with the employee, she explained to me that whilst she had major issues with her manager, she had even bigger issues with the company itself. She felt they had protected the manager and not taken her grievance seriously.
Confidentially, she shared that she was talking legal advice and her lawyer had advised that she attends mediation in order to show how reasonable she was being but if this didn’t work she was going to resign and start legal proceedings for constructive unfair dismissal and sex discrimination.
When I asked her my usual Spice Girl question “tell me what you want - what do you really really want” the answer was simply to leave and start legal proceedings. Whatever happened in the mediation, there was no way she was going to work for the company a day longer than she had to.
For her, the employment relationship had been severed beyond repair. She had no desire or (very importantly) any intention to repair the relationship with her manager.
At this stage many mediators would walk away, as the workplace mediation was never going to succeed. At Pragmatism we never give up - it’s against our ethos.
We talked about her planned next steps and what they would mean - waiting 12-18 months for a hearing, representing herself or paying heavy legal fees, the stress over all this time and the fact that she wasn’t guaranteed any sort of ‘win’.
As I explained, if this was her best option, then that’s what she should do.
But my job is to explore all known avenues for people and I asked her if she wanted me to liaise with her employer to establish whether they were willing to have a discussion about a mutual separation, reminding her that the discussions were without prejudice.
She gave me permission to ask the question and they said they would talk but couldn’t see a solution.
This was the point where this mediation turned from workplace to employment.
I postponed the mediation for the manager and asked the HR Director to sign an agreement to mediate - and off we went!
Around five hours later, the employee and the HR Director were relieved. They had agreed a way forward which worked for them both - nobody would be resigning, or be dismissed - it was an amicable and mutual separation.
The agreement was passed to lawyers, who drew up a settlement agreement the following day, the employee took her legal advice and the employment relationship ended less than a week after the mediation had taken place.
The most important thing, as with all mediations, is that everybody involved could now stop losing sleep and instead focus on what’s really important. For the majority of people, this is family, friends and loved ones.
Around one in every 15-20 mediations involve employment as well as workplace mediation - at Pragmatism we will utilise whatever skills and experience we need to in order to help people move on with their lives.
One of the many benefits of mediation is that in the very unlikely event they don't reach a resolution, they can still go ahead with whatever they were planning anyway, so there's very little if anything to lose, but so much to gain.
