The second article from Juris Resolutions provides HR professionals and solicitors with a framework for identifying when mediation is the preferred approach. How mediating cases early can help with creating a positive workplace culture.

Identifying cases which will benefit from mediation

Is the case suitable for mediation?
It may surprise readers to learn that most cases can be mediated.  In fact, it is easier to work out which cases cannot be mediated! These include cases where:
•    a court/tribunal hearing is needed to set a legal precedent.
•    the attitude of one of the parties is such that a mediation has no realistic prospect of success.

Mediation at the start is possible and often desirable
Parties can mediate at any time right up to the tribunal hearing but it makes sense to consider mediation early on and often this will be before the issue of formal legal proceedings.  Generally, the parties should consider mediation as soon as the issues are known by each side.  

The sooner, the better - why is this?  

1. Early mediation helps to preserve work relationships between the disputing parties. Often the disputing parties will end up continuing to work together or as part of a team so this aspect can be important.
2. Disputes begin with the parties but as time goes on there is the potential for other work colleagues to become involved or to take sides.  This can lead to factionalism in work relationships which produces less than optimum working conditions.  Early mediation and resolution cut these potential problems off early.  
3. Mediation early on is cheaper than undertaking tribunal proceedings which frequently reach extremely expensive proportions often running into many thousands of pounds.  Mediations, which cost considerably less, are usually resolved within one day and the success rate is extremely high – anecdotally this lies between 80-90% cases.
4. As well as being less costly, mediation is more efficient for both the parties and the business.

HR professionals and solicitors should therefore aim to encourage the parties to mediate just as soon as the issues between the parties are clear.  This means knowing what the case is about and the respective positions being adopted by both parties. Waiting for all formal documents in the formal tribunal process to be prepared and served is often simply not necessary.  In fact, once the tribunal process begins, the parties tend to become more entrenched and may be more resistant to resolution as parties often become weighed down by heavy legal documents and by cumbersome legal procedure generally.  Mediation is a comparatively easier option, best undertaken before the parties’ entrenchment is increased by the requirements of the legal process.  

It is of interest to note that there has been a recent change in Northern Ireland’s tribunal procedure which now offers Judicial Mediation. This type of mediation is carried out by tribunal members who chair the tribunals (obviously not the individual Chair who will eventually hear the case should it proceed to hearing) and is administered as a parallel aspect of the tribunal process.  It is therefore only available to tribunal cases at a certain stage of the proceedings. Because it is conducted by tribunal members who also hear (other) tribunal cases –the tribunal members are being required to undertake both roles (hearing cases and mediation) which each require very distinct sets of skills.  The scheme has its benefits but is not thought to be as successful as private mediations.  

Mediating later in the proceedings is still possible
Although we have addressed the advantages of engaging in mediation at an early stage, it will also often provide an excellent means of resolving disputes which have progressed to a more advanced stage. 

Complex cases involving, for example, allegations of unlawful discrimination and/or involving potentially high awards of compensation can and are successfully mediated.  However, mediation in these situations will generally only take place once the party bringing the case is in a position to know the true extent of any medical condition which may exist as well as the true extent of any past and future loss of earnings. 

Mediation still represents a cost-effective confidential means of resolving these sorts of cases because typically mediation will conclude in a day whereas cases of this nature can and routinely do take as much as 10 or even 15 days at Tribunal with all the cost implications that follow.

How mediating cases early can help with creating a positive workplace culture

Role of Early Mediation in Building a Positive Workplace Culture
Workplace conflicts are a common occurrence, and when left unaddressed, they can spread among employees, creating a negative and potentially toxic work environment. Declining morale often leads to reduced productivity, making early mediation a valuable, proactive strategy for conflict resolution. By adopting mediation as a tool for addressing workplace disputes, employers signal their commitment to fostering open communication and a supportive atmosphere. Taking the initiative in resolving conflicts this way contributes to a more harmonious and productive workplace.

Reducing Workplace Stress
Workplace conflicts can lead to stress and uncertainty, impacting both employee performance and well-being. By engaging in early mediation, disputes can be resolved before they intensify. Employees are given a structured, neutral space to voice their concerns and feel properly heard. This proactive approach reassures employees that their employers care about their well-being.  This fosters trust and leads to a more positive and engaged workforce.

Conclusion
Early mediation produces a healthier workplace by resolving conflicts before they escalate. It promotes communication, trust, and engagement, creating a supportive environment where employees feel valued and motivated. Investing in mediation not only settles disputes but also cultivates a positive workplace culture.