When starting on the mediation journey one of the first principles you learn is that mediation is a voluntary process. Why is it voluntary? Because people who come together willingly to resolve a conflict are showing that they are ready to move forward and own the process and outcome. That’s why mediation is so successful. In my own area of workplace mediation “success” rates are quoted as 90% plus.
So why is there now a move in the UK towards ‘mandatory’ mediation and is that a positive step forward or a dangerous development?
We need to understand what is being established. The UK Government is introducing mediation as a mandatory step in the Small Claims process. This will cover commercial claims up to the value of £10,000, though there is a clear indication that the approach should be extended to higher value claims in the future. To say therefore that mediation is becoming mandatory is far too much of a generalisation – more accurately a specific area of commercial dispute resolution is having a compulsory negotiation step introduced. This is a world away from there being mandatory mediation in my particular area of workplace mediation.
Confusion could be avoided by using better terminology. The term ‘mediation’ is used to cover an enormous range of resolution approaches. The Small Claims ‘mediation’ will consist of an hour of telephone ‘mediation’ with a court appointed mediator to try to find a settlement, which, given it relates to Small Claims, will be a money related agreement. This is nothing like the type of mediation we do in the workplace which has nothing to do with money, takes up to a day and focuses on the interpersonal and working relationship of the participants. Personally therefore I believe the Small Claims type of resolution should be called conciliation or negotiation, which is a more accurate representation of the process.
To return to workplace mediation I believe strongly that the voluntary nature of the process is a fundamental principle. No-one should be forced to mediate. However, I have a major concern that because mediation is voluntary it is all too easy for potential participants to refuse to mediate. Less experienced HR professionals supporting potential mediation cases might then think that is the end of the matter and so miss a potential resolution opportunity. I have spoken to many people who initially say they are not going to mediate but then go on to have a successful mediation. All too often people do not understand what mediation really is, they may have preconceptions or fears, and also think there are easier alternatives. My solution is that whilst they do not have to mediate, they should at least have a conversation with the mediator. Indeed, I would even go so far as to say an organisation shouldn’t compel anyone to mediate, but they can require them to consider mediation, which may involve speaking with a fully trained mediator.
Back to the question in my title… mediation – voluntary or mandatory? There may be room for a compulsory step in commercial mediation processes where essentially it is about facilitating a negotiation towards a financial resolution. When it comes to workplace mediation, participating in mediation must remain voluntary – but some compulsion to consider the mediation option is desirable.