There are some distinct phases in mediation.
Firstly, the mediator meets with each party separately to understand their experience of the conflict, their position and interests and what they want to happen next. During these meetings, the mediator will also seek agreement from the parties to a facilitated joint meeting.
In joint meetings:
- Each party recounts their story uninterrupted and listens to the other party’s story.
- The parties work towards a mutually acceptable solution.
- The facilitator usually writes an agreement approved by both parties.
The mediator will bring the meetings to a close, provide a copy of any settlement agreement, which can be legally or non-legally binding, to those involved and explain their responsibilities for its implementation. If no agreement is reached, other procedures may later be used to try to resolve the conflict.
Anything said during mediation should be confidential to those taking part unless all parties agree to share specific points, such as agreed actions or arrangements with their colleagues, managers, or HR. This means that a mediator may report to HR that a meeting has successfully taken place but not disclose the detail of what was discussed or agreed. The only exceptions to default confidentiality are where, for example, a potentially unlawful act has been committed, or there is a serious risk to health and safety.
Some lawyers practice as mediators, as do managers, employees, and trade union representatives through in-house mediation schemes. But representation by lawyers, trade unions, colleagues or relatives during mediation is generally discouraged. Mediation works best where there is a direct interaction between those involved in the conflict, leading to open and honest discussion, a reframing of relationships, and solutions that the parties find themselves. In contrast, representation can lead to the formalisation of the mediation process.
Mediation may be unsuitable if:
- a decision about right or wrong is needed, such as in criminal activity or overt abuse, when disciplinary procedures are more appropriate.
- An individual bringing a discrimination or harassment case wants it investigated formally, or the allegation is of a serious nature.
- An individual has to experience mental health problems or has learning difficulties that will be an obstacle to a joint meeting.
- The parties don’t have the remit to settle the issue.
There is no set structure for mediation, and when you go to mediation, the mediator might suggest a process different from the usual to fit your situation best. However, mediation will usually involve the following steps:
- The mediator will introduce all the people attending and ask everyone to agree to a process to be followed or some ground rules.
- The mediator will give each party a chance to explain what they think the problem is.
- The mediator will help the parties to discuss the problems they have described.
- The mediator may take time to talk to the parties separately and/or give the parties time to talk to their solicitors or support people.
- If the parties agree, the mediator will help them decide if or how they want it recorded.