Mediation, sometimes known as “Alternative Dispute Resolution”, is becoming a well recognised means of resolving all kinds of disputes. By definition Mediation “is a means of resolving disputes by taking the matter to a third party experienced in such cases and allowing the parties to hear the independent view of the Mediator in order to move toward settlement.”
Mediation is part of a system of Alternative Dispute Resolution and is considered to be a key tool for the resolution of disputes between parties. It is a voluntary, non-binding, non-adversarial and without prejudice dispute resolution process that allows the parties involved in the process to find a mutually acceptable outcome. This is unlike an adversarial litigation process in front of an independent third party who has the power to adjudicate on the matters before him/ her and impose an outcome. Whilst a Mediator is an independent third party the role of a Mediator is one of facilitation rather than imposition of an outcome. Therefore Mediation allows parties to avoid the litigation of a dispute in front of a third party. It can be used for the resolution of Employment Law issues. For further information read the Mediation page on the Morgan McManus website – .
In Northern Ireland the Labour Relations Agency (LRA) provides Mediation services. For more information read the Mediation section of that website – . This service is provided free of charge. It is important to bear in mind that this service is available regardless as to whether there is formal Employment Law dispute; eg, where a Claim has been issued before the Tribunal.
One area where such Mediation facilities can be particularly useful is in the resolution of a Bullying Complaint. For example, if you, as an employer, are advised by your employee that he is being bullied by his line manager you must in the normal course set in place formal Grievance procedures where an Investigation is carried out and you must ensure that the complaining employee and the line manager do not come into contact with each other during that Investigation. This can often be very difficult in small workplace. One way to seek an early informal resolution is by way of referral of the complaint to the Mediation service of the LRA, where the dispute could be resolved to the satisfaction of both employees in an informal basis in a short time and, more importantly, at no cost or disruption to the employer`s business. This would generally involve both employees going to the LRA office for a day to take part in the Mediation process. Bearing in mind how, under the principle of Vicarious liability, an employer could in normal circumstances be liable in compensation for the acts of his line manager where the complainant employee subsequently suffers occupational stress as a result of the actions of the line manager, this service should be availed of in these circumstances where possible.
For an example as to how Mediation works visit the Mediation video on the ACAS website at .
The LRA website does however point out some instances when Mediation is not appropriate. Examples are :
- it should not be used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation;
- it should not be used by a manager to avoid their managerial responsibilities;
- a decision about right or wrong is needed, for example where there is possible criminal activity;
- the individual bringing a discrimination or harassment case wants it investigated;
- the parties do not have the power to settle the issue;
- one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.
There are however examples where Mediation is appropriate; namely :
- for disputes involving colleagues of a similar job or grade, or between a line manager and their staff;
- at any stage in the dispute as long as any ongoing formal procedures are put on hold, or where mediation is included as a stage in the procedures themselves;
- to rebuild relationships after a formal dispute has been resolved;
- to address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.
If you, as an employer, are considering using Mediation to resolves a dispute within the workplace be careful to ensure that the process will not prejudice you in the defence of a subsequent claim should the process work. For instance, if an aggrieved employee is intent in having a harassment claim investigated regardless of the facility of Mediation you could be only making matters worse by putting that employee and the other employee (about whom the complaint is made) in face to face meetings in a Mediation process.
If unsure, why not contact Brian Morgan solicitor of Morgan McManus solicitors in advance at bmorgan@morganmcmanus.ie or phone him at 0035347 51011.
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