Mediation, as used in law, is a form of alternative dispute resolution (ADR), and is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).
Mediation is a process with a defined structure, timetable and dynamics that "ordinary" negotiation lacks. The process is entirely voluntary. It is private and confidential, without prejudice, and it is not binding until the point of agreement. The presence of a mediator is the key distinguishing feature of the process. There may be no obligation to go to mediation, but in some cases, any settlement agreement signed by the parties to a dispute will be binding on them.
Mediators use various techniques to open, or improve, dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Much depends on the mediator's skill and training. The mediator must be wholly impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, the parties may agree to a third party to settle a contract or agreement between the union and the company.
The drivers for the increasing use of mediation in the workplace are threefold: the findings of the 2004 Gibbons Report, The 2008 Employment Act and the new ACAS Code Of Practice.
The Gibbons Report on workplace dispute resolution in the UK concluded that the 2004 Dispute Resolution Regulations had failed and should be repealed. It recommended that future dispute resolution should be simpler, more cost-effective and much more flexible. It also recommended that the use of mediation be increased.
The 2008 Employment Act repealed the 3 step process for grievance and disciplinary procedures and replaced it with a simple and less prescriptive system. Essentially, it emphasises the early and informal resolution of disputes.
Under the Act Employment Tribunals were instructed to take this Code into account when considering cases and may increase or decrease an award by up to 25% when they feel that an employer or employee has failed unreasonably to follow the guidance of the code.
The ACAS Code Of Practice. The Code states that many potential disciplinary or grievance issues can be resolved informally. Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. And where this is not possible, employers and employees should consider using an independent third party to resolve the problem, who could be an internal mediator or an external mediator.
The sole aim of mediation is that the parties in dispute come up with a solution wherever possible. This may not be possible at a single session, but it continues to be the stated aim of all involved in the mediation process.