13. Mediation 


In principle, the TUC, and several unions, recognise that mediation has a role to play in resolving workplace disputes as long as it is clearly voluntary, and provided refusing mediation does not prevent an individual accessing the employment tribunal.


The TUC has produced joint guidance on good practice with Acas, Mediation: a guide for trade union representatives, available to download from the Acas website (www.acas.org.uk/media/pdf/m/7/Acas_TUC_Mediation_Guide_AUGUST_2010_%28Final%29.pdf).


The TUC is very clear that the introduction of mediation into a workplace where unions are recognised, including issues such as when its use is appropriate, how it fits with disciplinary and grievance procedures, how the mediator is selected, and the role of trade union reps, must all be negotiated and agreed in order for mediation to be effective. Acas, as a reputable, trusted and impartial organisation, is the TUC’s preferred mediator. 


According to the guidance, an impartial mediator “helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator”. The mediator is not there to “judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do”. The mediator is in charge of “the process of seeking to resolve the problem but not the outcome”. 


Mediation is informal, flexible, voluntary, morally binding but with no legal status, confidential and (generally) unrepresented. The guidance suggests mediation is suited to situations of:


• relationship breakdown;


• personality clashes; 


• bullying and harassment and perceived discrimination issues (although this must be judged on a case-by-case basis, as more formal procedures may be more appropriate depending on the facts);


• where managers may be perceived as biased; or


• where negotiations between union and management have broken down and both parties agree that mediation offers a way forward.


Mediation may not be suitable if:


• used as a first resort, or to bypass or undermine agreed dispute resolution procedures;


• used to avoid managerial responsibilities; 


• a decision about right or wrong is needed;


• the individual bringing a discrimination or harassment case wants it investigated;


• the parties do not have power to settle the issue; or


• one side is completely intransigent, and using mediation will only raise unrealistic expectations of a positive outcome.