When an Employment Tribunal Says “The Most Obvious Example Would Have Been Mediation”

A single line from a recent Employment Tribunal judgement caught mediator Nickie Verheijen’s attention. In this article she reflects on what that rare judicial observation means for workplace mediators, and why early intervention matters more than ever.

WRITTEN BY NICKIE VERHEIJEN

As workplace mediators, we spend much of our time encouraging others to recognise the value of early dialogue. Every now and then, however, that message is reinforced from an unexpected source.

A recent Employment Tribunal judgment, Karenne Sylvester v Stuart Phillpson and Others (The University of Manchester) (Case No. 2400241/2024), has sparked important discussion within both the mediation and HR professions about the role of early intervention in resolving workplace conflict.

The facts of the case have been widely reported. An employee with dyspraxia repeatedly used the wrong pronouns when referring to a transgender colleague. The Tribunal ultimately found that the employer had failed to properly consider whether the employee’s disability contributed to those repeated mistakes before concluding that the conduct amounted to harassment.

The Tribunal observed “The most obvious example would have been mediation.”

What caught my attention wasn’t the legal analysis, it was a single sentence within the judgment.

The Tribunal observed “The most obvious example would have been mediation.”

For me, that was the most striking part of the judgment. Not because mediation needs judicial endorsement, but it is unusual to see an Employment Tribunal identify mediation so explicitly as the opportunity that was missed.

The Tribunal went on to explain why, observing that the issue “could have been nipped in the bud” if the parties had sat down together and it had been explained that the employee had not intended to misgender their colleague. It would just take them longer to consistently use the correct pronouns.

Many of us have sat in mediations thinking, “If only we’d had this conversation six months ago.”

By the time parties arrive with us, formal processes have often taken their course. Narratives have formed, assumptions have hardened and people have become invested in defending their own version of events. We still achieve remarkable outcomes, but we also recognise how different those conversations might have been had they taken place before positions became entrenched.

Not every workplace conflict requires a formal process as its first response.

The Tribunal’s comments reminded me of another recent development. The Faculty of Public Health’s discussion paper, Reducing Harm from the Poor Application of Disciplinary Processes: A Public Health Issue, challenges organisations to think differently about conflict and the unintended consequences of defaulting too quickly to formal procedures. Whilst the paper is not about mediation specifically, its central theme of reducing unnecessary harm through earlier and more proportionate interventions will resonate with many workplace mediators.

Taken together, these developments suggest that the wider conversation may finally be catching up with what workplace mediators have been saying for years.

Not every workplace conflict requires a formal process as its first response.

That observation doesn’t diminish the importance of formal investigations where they are genuinely required, nor does it suggest mediation is appropriate in every circumstance. Rather, it raises an important question about timing.

As mediators, we understand that timing can be everything.

The earlier people are given an opportunity to talk, the greater the opportunity to preserve relationships, maintain trust and prevent conflict from becoming something much more difficult to resolve. Once formal processes begin, conversations inevitably change. That isn’t a criticism of those processes, they have an essential role but it is a recognition that opportunities for genuine understanding can become harder to create.

Perhaps what struck me most about the Tribunal’s observations was that mediation was recognised not as something to consider once every other avenue had failed, but as an intervention that might have prevented escalation altogether.

That feels like an important distinction.

For those of us who work in workplace mediation, it is encouraging to see this reflected beyond our own profession. Recognition from the judiciary, alongside wider conversations emerging from public health, suggests that mediation is increasingly being viewed not simply as a way of resolving disputes, but as a means of preventing them.

As mediators, we have long understood that the value of our work is not simply in helping people resolve disputes. It lies in creating the opportunity for conversations that might otherwise never take place.

Perhaps what is changing is not mediation itself, but the recognition that those conversations are often at their most valuable before conflict becomes a formal process.

If recent developments are anything to go by, that recognition is beginning to spread well beyond the mediation profession.