Most of the commentary on the topic of mandatory mediation focuses on mediation as an alternative to court. But what about mediation for conflict in the workplace? Should it ever be mandatory?
A recent article in the National Law Review discussed precisely this question, after it was raised during the February Civil Mediation Seminar on using mediation as part of workplace grievance procedures.
The problem in this context is the same as in any form of compulsory mediation. Namely, mediation is by its nature a voluntary process. Opponents of compulsion see forcing parties to enter the process as a contradiction, which is unlikely to be successful and to waste further time and expense.
The data, however, does not support this. For example empirical studies in Australia, where mandatory mediation is used more widely, shows no clear difference between the settlement rates of mandatory schemes compared with voluntary schemes.
The contradiction can be reconciled by the fact that you are coercing the parties into mediation, rather than coercing them to settle in the mediation itself. This distinction is often described using the old saying, ‘you can lead a horse to water but you can’t make it drink’.
Workplace Mediation - All Bark No Bite?
The question when it comes to workplace conflict is whether employers have the power to compel parties to mediate.
If they are unable to penalise parties who refuse to participate in the mediation, then the offer of mediation will lack any ‘bite’. The party could refuse without consequence.
So does including mediation as part of a grievance or disciplinary procedure have any bite in practice? As always, it will depend on all the facts. There may well be reasonable grounds to refuse the mediate, in which case there is little an employer can do.
In most cases, however, asking the employees to mediate their grievance is an inherently reasonable request by management, since restoration of the working relationship is important for business.
As the author of the article points out, by unreasonably refusing to mediate, an employee is ‘taking a clear and non-confidential step directly inimical to the restoration of the relationship which you need as employer’. In the event that the working relationship cannot be restored and one employee need to be relocated or dismissed, this will be an important consideration for the employer.
Dismissal need not be on the grounds of ‘disobedience’ but rather on the basis that their unreasonable refusal to try and work things out has unduly contributed to the irretrievable breakdown of an important working relationship.
What do you think?
Is it fair for an employer to penalise a party for refusing to mediate?
Or is this necessary for the mediation procedure to have some bite?
Share your thoughts in the comments below.
If you’d like to learn more about mandatory mediation, check out this interview with Diana Paraguacuto, who discusses mandatory mediation in France and Argentina.
 Spencer, D and Brogan, M. (2007). Mediation Law and Practice. CUP, 271.