There has been the long-standing argument that mediation is an effective way of resolving any disputes, saving the time, hassle, money and stress of court or an employment tribunal.

Mediators are for ever spitting out statistics of how they have saved high net worth individuals and large multinational companies hundreds of thousands, millions of pounds in litigation. All true, however, what happens when mediation is not appropriate?  

The Reality Of Mediation

Surely mediation cannot be used in every dispute scenario as some workplace mediators and commercial mediators state? The truth is no it cannot. When I did my mediation training, I was taught that where there is a will, there is a way, (which to an extent is true) and mediation was this magical process which could mend the most fractured of relationships. This is incorrect. After twenty-three years of mediating, I have come to expect the unexpected. Because anything can happen, and usually does! The cases which you think will run smoothly do not. The ones you think will be a nightmare, are not.

When Mediation Just Will Not Work

  1. When the parties and or their solicitors are just fishing for information.
  2. A box ticking exercise, where the disputants can just tell the court, yes, we tried commercial mediation, but it did not work. (Usually where they just want to litigate, carry on with the litigation).
  3. Where illegal activities are taking place, have taken place, are likely to take place further.  
  4. Where there is an active police investigation.
  5. Victim offender mediation is especially effective, however, where there has been a crime of a sexual nature, it is not appropriate to use.
  6. Where the cost of the litigation thus far has been so much. And the parties are so close to trial, that the bulk of their spend has been paid out. Whereby a few thousand pounds more, would be better spent on litigating than mediation services rather than on a mediator service. Thus, whereby they have nothing to lose.

This of course is not an exhaustive list, however it would cover the main times, when mediation just would not be suitable. This expands further into when the mediator should not actually mediate.

When The Mediator Should Not Mediate

  1. Where there is a conflict of interest. Unless they have declared this to all the parties, and they have all confirmed they have no issue with the potential conflict.
  2. Not to mediate a dispute where they have no experience of the subject matter. Again, if they have declared this, then that is fine.
  3. Where any of the parties are intoxicated.
  4. Where the agreement to mediate has not been signed.
  5. Where the parties have not confirmed that they have the authority to settle.
  6. Where the mediator has not complied with their continuous professional development, for example they have not undertaken the required yearly points. Allowing them to continue to mediate.
  7. Online mediation, where the mediator is not IT literate, or has a poor internet connection, they should not mediate online, and should offer an in person rather than an online mediation.
  8. Where the mediation company has been investigated for anything untoward. (Subject to any sanctions imposed by the Civil Mediation Council).
  9. Where the accreditations the mediator claims to have, they have not actually been obtained.
  10. The mediator must stop mediating if the parties state, they do not wish to continue, mediation is voluntary, and this imperative rule must be observed and respected.
  11. Where the mediation company has been struck off Companies House.

Again, this is not an exhaustive list, but it covers the main times when a mediator should not provide mediation.

How Does This Effect Workplace Mediation

Obviously, each individual dispute has to be considered on its individual merit, however it does not matter if the dispute is a workplace dispute or a commercial dispute. The mediator must act with integrity and honesty, just like solicitors must, who are regulated by the Solicitors Regulation Authority / Barristers by the Bars Standards Board. So, all of the above would apply despite what type of mediation is required.

The only difference is, that the workplace mediation model differs to the commercial mediation model. The sessions differ, and have to be conducted differently. Equally a workplace mediation cannot be conducted by a commercial mediator. A commercial mediation cannot be conducted by a workplace mediator, unless they have been trained in both disciplines.

What About Locations

Could a UK mediator mediate in the United States of America, yes and no! Yes, if the state has the same legal rules as the United Kingdom. No if the rule of law, mediation procedures are different to the ones the UK mediator usually operates under.

Can a Kent mediation service mediate in Coventry, of course they can. Location is of no issue, as long as the mediator is upfront about their travel costs, for example they will not charge any, or they will be of a certain amount.

Conclusion

Yes, mediation is at times a magical, wonderful process which repairs relationships, gives parties closure, saves them their hard-earned money and precious time. However, there are a particular set of circumstances all pre mentioned, where mediation would not be appropriate. And in fact, would just add to the parties’ anguish, stress and expense. A failed, inappropriate mediation would just add to the cost of any litigation that was running. And possibly result in a claim of professional negligence against the mediator and or the mediation company that supplied them.