The Case for Mediation to be Mainstream

When I trained as a mediator 20 years ago I was really surprised to find out how reluctant employers are to use mediation when the arguments for its use are so great. Mediation seemed a no brainer to me.

UK employers carry out about 1.7m disciplinary cases a year at an estimated cost of £28.5bn to the economy, (ACAS). But I think they should be just as concerned about the enormous emotional costs involved. And these can be devastating.

Recently, a Surrey coroner’s court heard the case of 26-year-old Chloe Moffat, who was a personal assistant at the Treasury. Chloe killed herself after becoming upset because she had been subjected to disciplinary proceedings on the basis of an anonymous complaint.

And Chloe is not alone, I regularly hear from employees who are suffering enormous stress and anxiety over a conflict at work; from workers who have been off work for year; are on medication; have panic attacks; can’t sleep or concentrate and are unable to function properly. Their whole lives are affected, as they are too distracted and caught up in the conflict to devote the necessary attention to their families and friends. I have heard more than once that they feel they are in hell.

This is all borne out by a recent report by the UK Faculty of Public Health which concluded disciplinary proceedings cause such harm that they should be seen as a threat to public health like smoking or bad diet. In addition, it concludes they harm not just the staff involved but also their colleagues and the organisation that employs them.

The processes involved in many of those 1.7m actions are flawed because organisations put formal ways of pursuing them above their staff wellbeing, according to the report.

So why are employers so reluctant to try mediation or early informal resolution?

My enquires suggest that they fear being accused of avoiding accountability, they don’t like the idea that there is no guarantee of a resolution and workers often want a right/wrong outcome. Confidentially around mediation also appears to put HR specialists off – they don’t get a report, just what the parties want to share. Legal risk is another reason I’ve heard, what if a complaint later becomes a grievance, tribunal claim or safeguarding issue, mediation might be seen as a failure to investigate. And sometimes the barriers are practical: no clear referral route, or a culture where HR is expected to “take action” quickly. These concerns are real, but they should be reasons to design mediation carefully, not reasons to avoid it altogether.

What troubles me is that this scale of harm is not inevitable. It reflects a workplace culture that can sometimes confuse formality with fairness, and risk management with care. Procedure matters, but it should not crowd out humanity.

But what should we as mediators be doing to try and increase the take up of mediation – no doubt answers will come out of the CMC Conference where this year’s theme is Making Mediation Mainstream.

However, I have a few ideas of my own. Maybe we can persuade employers by reframing mediation not as leniency, but as disciplined risk management. Emphasising the cost, delay and emotional harm of a formal process.

Ask employers direct questions before escalation: what harm might an investigation cause, what outcome is actually needed, and has a less adversarial route been properly tested? Presented in that way, mediation becomes not a retreat from accountability but a more intelligent way of achieving it.

None of this means serious misconduct should be minimised or that formal procedures should disappear. There will always be cases where investigation is necessary. But necessity should be proved, not assumed. Mediation should not be an optional extra offered only when managers and HR feel comfortable with it; it should be the default question at the start of every workplace conflict: can this be resolved without causing avoidable harm?

Until organisations can answer that question honestly, their disciplinary systems will continue to look less like justice and more like a failure of imagination.