Why is workplace mediation not more common?
Workplace disputes are unfortunate yet common, and the consequences can be significant for both employees and employers. The traditional method for resolving workplace disputes has been through litigation, particularly in the form of employment tribunal claims.
However, over the last 12 months or so, there has been a developing and welcome re-interest in alternative dispute resolution mechanisms, particularly mediation. To some extent, this can be explained by increased frustration with the length of time it now takes to have claims heard by the Employment Tribunal – cases are now being listed for 2030. The pressure on the tribunal system is only going to increase with the changes to the unfair dismissal regime to be introduced from 1 January 2027 by the Employment Rights Act 2025 (a reduction in the qualifying period to bring a claim from two years to six months, and the removal of the cap on the compensatory award). The re-interest in mediation and other forms of alternative dispute resolution may, however, have more to do with a positive interest in looking beyond litigation as a means to resolve workplace issues.
This article explores the pros and cons of using workplace mediation in the UK to resolve workplace disputes before litigation and once an employment tribunal claim is submitted. It explains why mediation is not as widely utilised as it could be and how mediation could benefit both individuals and employers while alleviating the strain on the increasingly-overburdened employment tribunal system.
The Advisory, Conciliation and Arbitration Service (ACAS) was created in September 1974 and was given statutory powers under the Employment Protection Act 1975.
Various UK governments have tried to pivot employees and employers away from the court and towards mediation as a means to resolve employment disputes over the decades. ACAS has long advocated for mediation as a tool for resolving conflicts in the workplace and provides an early conciliation service, which is the first step for employees wishing to pursue a claim in the Employment Tribunal.
However, ACAS conciliation is not always successful, and often one party refuses to engage. Very often, this is the first and last attempt to mediate a resolution prior to litigation and, once a claim is lodged, it is quite rare for the parties to revisit mediation during litigation, including exploring judicial mediation.
Mediation provides an alternative to the adversarial, formal, and often expensive process of tribunal hearings. Increasingly, individuals, employers and their legal advisers are seeing the benefit of workplace mediation not only in terms of cost but also due to the length of time it takes for claims to be heard by employment tribunals.
What is workplace mediation?
Mediation is a form of alternative dispute resolution (ADR) that involves a neutral third party – the mediator – who helps the disputing parties reach a voluntary agreement. The mediator does not make binding decisions but facilitates communication and negotiation between the parties.
Mediation can be used to resolve a range of issues in workplace disputes, including disputes over discrimination, wrongful dismissal, bullying, harassment, and contractual disputes, long before a matter escalates. Mediation at an early stage could avoid litigation entirely, improve relationships and reset the working relationship.
Why should workplace mediation be considered?
Cost-effectiveness
One of mediation’s most significant advantages is its cost-effectiveness. Employment tribunal claims can be expensive, particularly when legal representation is required. Legal fees, expert witness costs, and the time required for tribunal hearings can quickly mount up. In contrast, mediation is usually much cheaper, as it avoids the need for lengthy legal procedures and can often be completed in a single day or a few sessions.
Mediation is typically more affordable for both parties compared to the full costs of an employment tribunal. Mediation services, such as those offered by ACAS, are often free or available at a low cost, which can substantially benefit employees who may not have the financial resources to pursue a formal claim.
Speed and efficiency
Mediation can resolve disputes much faster than employment tribunals. Employment tribunal claims can take several months or even years to be heard, depending on the complexity of the case and the availability of tribunal resources. In contrast, mediation can often be scheduled within a matter of weeks, providing a much quicker resolution to the dispute.
Resolving disputes efficiently can prevent prolonged stress, lost productivity, and continued tension in the workplace for both employees and employers. Quicker resolution can help the parties return to their normal operations or part ways relatively amicably, reducing the stress and financial burden for both parties.
Confidentiality and privacy
Mediation is a private process, unlike employment tribunal hearings, which are generally public. The confidentiality of mediation is one of its key attractions, particularly for employees who may fear the impact of a public tribunal hearing on their reputation and career.
Mediation allows the parties to explore and discuss sensitive issues in a safe, confidential setting, which can encourage honesty and openness.
The privacy of mediation also helps to protect the employer’s reputation. Negative publicity arising from a public tribunal hearing could seriously damage a company’s reputation, particularly if the claim involves allegations of discrimination or harassment. By resolving the issue through mediation, the employer can avoid the public exposure of such disputes.
Preservation of relationships
One of the primary goals of mediation is to preserve the relationship between the parties. In a workplace dispute, the employee and employer may continue to work together after the dispute is resolved, and mediation is often seen as a way to repair or maintain that relationship. By allowing both parties to express their concerns in a constructive environment, mediation can help rebuild trust and communication.
This is particularly important in cases where the employee and employer have an ongoing relationship, such as in small businesses or where the employee is an integral part of the team. Maintaining this relationship after the resolution of the dispute can be more beneficial than the often adversarial and combative nature of tribunal hearings, which can irreparably damage the working relationship.
Flexibility and control
Unlike the rigid structure of a tribunal hearing, mediation offers flexibility in how the dispute is addressed. The parties have control over the outcome, as they are the ones who negotiate and agree to a resolution. The voluntary nature of mediation means that the parties are more likely to feel satisfied with the outcome, as they have a hand in shaping the agreement.
In mediation, the parties can explore creative solutions that may not be available in a tribunal setting. For example, the parties may agree to changes in workplace practices, additional training, or an apology, which could be more meaningful and constructive than a financial settlement or judgment rendered by a tribunal.
What are the downsides to using workplace mediation?
Power imbalances
A significant risk in mediation is the potential for power imbalances between the parties. In some disputes, particularly those involving an employee and employer, the employer may have greater bargaining power, which could make it difficult for the employee to negotiate a fair resolution. Without careful facilitation, the employee may feel pressured to accept a settlement that is not in their best interest.
Mediation can sometimes reinforce power imbalances, especially if the employee is unrepresented or lacks the necessary support to negotiate effectively. In such cases, the mediation process may not result in a fair or just outcome.
Lack of binding decisions
Unlike employment tribunals, which make legally binding decisions, mediation does not result in a formal judgment. While the parties may agree to a settlement, there is no guarantee that the agreement will be enforceable unless presented afterwards. This lack of a binding decision can be a disadvantage, particularly if one party does not adhere to the terms of the agreement.
If the mediation agreement is not followed, the employee may be left with few options to enforce the terms of the resolution. In contrast, an employment tribunal decision is legally binding and can be enforced through legal means if necessary.
If agreement is reached, the terms should be documented in a settlement agreement, which requires a lawyer to advise on, and then forms a legally binding agreement.
Inappropriate for certain disputes
Mediation may not be appropriate for all types of disputes. For example, in cases involving serious misconduct, criminal behaviour, or significant breaches of employment law, mediation may not be the best avenue for resolution.
In such cases, formal legal proceedings may be necessary to ensure that justice is served and that the parties’ rights are protected.
Additionally, mediation may be ineffective if one party is unwilling to participate in good faith or is not committed to resolving the issue. Mediation requires both parties to be open to negotiation and compromise, and if either party is determined to litigate or is not receptive to finding a resolution, mediation may not be successful.
Why is workplace mediation not widely used?
Despite the clear advantages of mediation, it is still underutilised in resolving workplace disputes and employment tribunal claims in the UK.
There are several reasons for this.
Lack of awareness
Many individuals, particularly employees, are not fully aware of the option of mediation or how it works. Employees may be unaware of the early conciliation services offered by ACAS or may not know that mediation is an alternative to pursuing a full tribunal claim.
Employer resistance
Some employers may be resistant to mediation because they fear it will not adequately protect their interests or result in a favourable outcome. They may also feel that mediation could be seen as an admission of fault or be concerned about the costs involved in the process. As a result, they may prefer to rely on legal representation and the formal tribunal system to resolve disputes.
Cultural factors
In some workplaces, there may be a cultural reluctance to embrace mediation to resolve disputes. Employees may fear that mediation will not be effective in addressing power dynamics or that it will not result in a satisfactory outcome.
Similarly, employers may be hesitant to adopt mediation because it may be perceived as an informal or less authoritative approach to resolving disputes.
Lack of training for workplace mediators
Not all workplace mediators are adequately trained, and some may lack the skills necessary to effectively handle complex workplace disputes.
The success of mediation depends on the ability of the mediator to facilitate productive communication and ensure that both parties feel heard and respected. Without trained mediators, mediation may not be as effective in resolving disputes.
Benefits of workplace mediation
For employees
Mediation offers employees a quicker and more affordable way to resolve disputes with their employer. The confidentiality of the process and the opportunity to repair relationships can lead to a more positive outcome than a tribunal hearing. Mediation can also provide employees with a sense of empowerment, as they have more control over the outcome.
For employers
Mediation can prevent lengthy and costly tribunal claims for employers, preserve workplace relationships, and avoid negative publicity. Mediation can also lead to creative solutions that are tailored to the specific needs of the employer and employee, which may not be available through the tribunal system.
For the employment tribunal system
Mediation helps to alleviate the burden on the overstrained employment tribunal system, which is currently creaking. By resolving disputes through mediation, the tribunal system can focus on more complex cases, ensuring that resources are used efficiently. Reducing the number of tribunal claims also benefits the public sector by reducing administrative costs and delays.
Conclusion
Mediation presents both opportunities and challenges in resolving workplace disputes and employment tribunal claims in the UK.
While it offers significant advantages in terms of cost-effectiveness, speed, confidentiality, and the preservation of relationships, it also carries risks related to power imbalances, a lack of binding decisions, and its suitability for certain types of disputes.
Despite these challenges, mediation has the potential to benefit individuals, employers, and the employment tribunal system by providing an alternative to the formal and adversarial tribunal process.
Greater awareness, training, and cultural change are needed to encourage more widespread use of mediation in the UK workplace. As the employment tribunal system continues to experience strain, which is only likely to increase with the changes to the unfair dismissal