How to settle workplace disputes: a legal mediator’s take

Every workplace will have its conflicts and disagreements, but what if the tension escalates? We pick the brain of Patrick Cannon, barrister, CMC-registered mediator and workplace mediation guru, to find out his take on best practice for resolving conflicts. His rule is simple: “Don’t make matters worse!”

The interview is in full below.

WHICH MEDIATION SKILLS SHOULD EVERY MANAGER HAVE, OR SEEK TO HAVE?

A manager-workplace mediator should be someone who is capable of inspiring both confidence and respect in the persons in dispute. At the same time, the mediator should be personable and respectful of each person. It will obviously be helpful if the mediator is not the line manager of either person in dispute and should be as independent from them as circumstances permit to avoid any suggestion or appearance of bias. It should also be remembered that the mediator is there to help the persons in dispute reach their own settlement and is not there to give advice on the issues, express any opinions or make a decision. The mediator does not need to be an expert in the subject matter of the dispute – though, having said that, familiarity with the details can obviously assist when discussing the matter with the parties and avoid the need for technical explanations to be given to the mediator by the parties where relevant. Familiarity with any related process is, however, important; in an employment dispute, for example, a good knowledge of the legal processes before the employment tribunals and courts is helpful to ensure that the discussions by the parties are realistic and rooted in what is possible under the relevant regulations and that any settlement reached is legally valid.

CAN MANAGERS PERFORM THE ROLE OF MEDIATOR?

While it may be tempting for an employer to use a manager as mediator on costs grounds, this gives rise to an inherent conflict of interest: the manager owes a duty of loyalty to the employer, and there will always be the possibility that a manager-mediator is not truly independent, and may subtly have tried to influence the outcome to suit the employer’s best interests instead of fulfilling a mediator’s duty to remain impartial. Indeed, a manager-mediator with line management responsibility for the costs of the dispute may be under some pressure to ensure that the dispute is resolved in a particular way and so this is best avoided. If the dispute were to end up in the employment tribunal anyway, the tribunal may not take kindly to any perception that an earlier “mediation” was not conducted impartially and bring this factor into consideration in reaching its decision.

WHAT DO MEDIATORS DO WHEN THEY USUALLY GET INVOLVED IN A SITUATION LIKE THIS?

When an employment dispute has reached the stage that a professional mediator is needed they will be appointed by the parties under a written mediation agreement and the fee agreed will be shared by the parties and paid in advance. The mediation will take place at a venue agreed between the parties.

The process is conducted “without prejudice” but leads to a binding settlement if the parties reach an agreement and it is written down and signed by them. Settlement agreements will often be made into a Consent Order to end any legal proceedings, which may also be a Tomlin Order (where the terms of the settlement are kept private on an attached Schedule), for sealing by the court.

If legal proceedings have not yet actually begun, then simple heads of terms written down and signed by both parties will often suffice. Mediations are confidential and the information discussed within it cannot be used in court or any other legal action. The mediator is strictly neutral and cannot offer legal advice or opinions even where one party is legally represented and the other is not. The mediator can however advise on process and is there to assist the parties to reach an agreement to settle their dispute and the mediator does not give a decision at the end of the process.

The parties will often start the day by meeting in the presence of the mediator to state and explain their opening positions and then move to separate rooms to discuss and consider their positions in the light of what each party has said. The mediator will often then shuttle between the separate rooms to put points that each party has authorised to the other party to explore what might be acceptable. Any offers will need to be put into writing by the party making them, and the mediator will take the piece of paper containing the offer (often just an amount) to the other room and discuss with that party.

Sometimes an agreement will be reached after several offers and counter-offers have been made in this way. If an agreement has been reached it is not necessary for the parties to meet again in a plenary session, as long as they both sign the settlement agreement, but it is often the case that with the relief of having reached a settlement they wish to meet again to express their satisfaction and to leave on good terms.

HOW DO YOU DETERMINE THE RIGHT RESOLUTION?

In any true mediation there is no right or wrong resolution because it is the parties in dispute who arrive at their own settlement and not the mediator who merely facilitates that settlement. By definition any such settlement is the right resolution.

Patrick Cannon is a tax barrister and mediator registered with CMC. His published works include the annual Tolley’s Stamp Taxes and Key Haven’s GAAR: A Practical Approach.

To find out more about resolving workplace conflict, you can read our guide from a professional negotiator for key takeaways you can use today.

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