This is the concluding piece in our series by http://www.cedr.com/about_us/people/?p=Caroline-Sheridan.
Not all mediations settle. The Employment Tribunal mediation system boasts a success rate of 70%, while CEDR’s experience is that of about 85% of its employment mediations result in an agreement. Those who do not settle can go off to fight another day, and best of luck to them with that, but for those who do reach an agreement, what are the rules about wrapping up the process?
That depends very much on what the mediation is about. If it is a matter which is or could be the subject of Employment Tribunal proceedings, then the employer is still safest requiring the completion of a statutory settlement agreement. The fact that the agreement is reached via a mediation does not vary the usual rule that an ordinary letter of agreement is not effective to waive statutory claims.
However, many mediations are about resolving tensions between colleagues which will otherwise explode, the shrapnel causing who knows what damage to those individuals, the colleagues around them and the employer’s business. The terms of settlement in those cases (also called “facilitations”) can often be little more than an increased mutual understanding of the other’s position or sensitivities, or perhaps an apology (more likely when reframed as an “acknowledgement”) or some express commitment to deal differently next time with any issues arising. CEDR recommends that all settlements should be in writing, but I have found in cases like this that the process of reducing this mutual understanding to paper can do more harm than good. This is because the parties then inevitably focus on the precise words used and not on the behavioural changes which they have agreed. If the protagonists are genuinely content to resolve the matter on a handshake, then it is not for the mediator to require otherwise.
Even where there is to be a written agreement, the mediator cannot advise on its detailed terms for fear of being perceived to have lost his/her neutrality. The most I can do is to remind the parties of the different components of the settlement at the close of the bargaining stage, but it is up to them to determine what goes into the final agreement. For this reason at least, it can make sense for the parties to have their advisors available in person or on the phone towards the back end of the mediation day.
Going home after a failed mediation is a deeply depressing business, and that is just for me, let alone the actual parties. Sometimes they are just miles apart from the start and failure is always on the cards, but equally mediations occasionally founder on a last-minute moment of fatigue, temper or intransigence (the parties, not me!) when they had seemed just about to do a deal. In those circumstances, a good mediator will let the parties reflect overnight on the wasted cost and lost opportunity to put it all behind them, and will contact both again the next day to see if something can be snatched from the jaws of defeat. A meaningful proportion of mediations which do not succeed on the day are resolved soon afterwards in this way. All part of the mediation service!