Most people have heard of mediation. In the context of employment, mediation is a free and confidential tool to resolve problems.
But what does that mean in practice? Who’s involved? What happens when you go to mediation? And why would you choose mediation over other ways of resolving employment issues?
In this blog post, we have a close look at mediation, how it happens, what to expect when you attend, when you should use it, and how it can be a powerful way to resolve disputes before they get nasty.
Generally speaking, mediation is a process where an independent third party intervenes in a dispute, or challenging employment situation, to help resolve it.
Quite often, parties in a dispute will be too close to it or too emotionally invested to be able to see clearly enough to resolve it. So a mediator who is objective and impartial can be very helpful in navigating the problem and helping people find a constructive solution.
Mediation, by default, is without prejudice, so people can speak freely as equals, and say things they wouldn’t normally or which might otherwise prejudice an outcome.
Unlike court proceedings, mediation isn’t strictly formal; it’s voluntary and resolutions aren’t binding unless both parties agree.
In Canada, mediation is an unregistered industry (unlike chartered accountants or lawyers), but mediators can register with industry bodies, e.g. the Canadian Mediation Association, the ADR Institute of Canada.
Mediation can be triggered either by the employer or employee (or ex-employee). In some cases, an individual employment contract may contain dispute resolution procedures that require the parties to mediate.
Typically, meditation is requested from a private provider and a mediator is assigned to the case. The mediator will then make contact and arrange a meeting (either in person or remotely) at a time both parties agree to.
Mediation is voluntary: either party can decline to attend. However, we recommend that if you’re invited to mediation, as employer or employee, you should attend as it demonstrates your willingness to try and resolve an issue. Choosing not to go can be a black mark against your name, should the problem escalate and require more formal proceedings.
Both parties attend mediation sessions. This can be done solely by the people involved, or the parties can bring a professional representative - e.g. employment advocate or lawyer - or a support person, such as a family member, friend, or community leader.
We recommend bringing representation, as employment law is complex and having a professional who knows the nuances, and can advocate for you, can be of great assistance.
Mediation typically follows this process:
A mediator is not there to advocate for one party or the other and can’t make recommendations. But they are there to help resolve the situation and ensure the conversation remains constructive. They will provide feedback to both parties about potential outcomes and provide context.
While it might seem like mediation should be reserved for serious issues, pretty much any employment problem can be taken to mediation. This might be when:
More pragmatically, if the employment relationship is still recoverable, then you are unlikely to need to go to mediation as you can probably manage the problem within the workplace, e.g., through discussions between an employee and their manager or senior management.
However, if the relationship is not recoverable, then mediation can help you get it resolved. At MyHR, we advise employers to go to mediation when:
Going to mediation in these circumstances can speed up the resolution process and improve your chances of a positive outcome. The more evidence you can provide that you have upheld your side of the employment relationship - e.g. proof of training, one-on-one guidance, performance reviews or PIPs, disciplinary action - the better your chances of a good outcome.
There are many potential outcomes of mediation. This could be:
Outcomes or settlements are only binding if both parties agree. The mediator will then create a record of settlement, which is signed by the parties and the mediator. The record is then confidential, final and binding, i.e. both parties must do what they agreed to when they signed, and it is enforceable through the courts.
Sometimes, the parties won’t reach an agreed outcome, in which case they can ask the mediator to make a decision or a recommendation.
A decision is binding and enforceable whereas the parties have a specified time limit to decline a recommendation, after which it becomes binding.
Some not-for-profit organizations and private mediation providers offer free or low-cost mediation services.
Engaging private mediators can get expensive, depending on the complexity of the issue, and there are a variety of cost structures, e.g. an upfront fee (based on the the value of the whole dispute) or payment at a daily/hourly rate. However, mediation usually costs a lot less than going to court to resolve an employment issue - it’s also a lot quicker.
Both parties usually agree to share the costs of mediation.
Arbitration is a more formal form of dispute resolution involving an independent, impartial person (arbitrator) who listens to each party and then makes a binding decision that is enforceable in court.
Both parties must agree to arbitration.
Arbitration can be more costly and time-consuming than mediation, especially if the dispute is complex.
If you have any questions about mediation or need help resolving employment issues, don't hesitate to contact the experts at MyHR.