Do you really mean it? Commitment to mediation.

Some workplace disputes may have already got to tribunal under the new regime.  I’m not sure if uplifts or penalties have yet been handed out for organisations and complainants according to the tribunal’s assessment of how fairly and reasonably’ they have behaved under the new ACAS code. I’m particularly curious to know how commitment to ‘early local resolution’ particularly mediation, will be measured.

Some mediators are already being asked by judges whether they felt the parties were ‘truly committed to mediation’ particularly when awarding costs. I understand why the question is being asked but am alarmed to find that some mediators feel empowered to answer it and give their opinion of the parties’ commitment. CMP mediators have been asked similar questions by senior managers who commission workplace mediations. They choose not to answer.

This feels like a step beyond impartiality to me.  I may have a view about commitment and will do everything I can to ensure effective engagement with the mediation process by the parties. Mediation is a new and single-use process for most parties. It places high demands on the parties. Of course some people go thorough the motions, and have no intention of settling and just want their ‘day in court’. Other parties invest substantial time, energy and emotional conviction into the process and are patient, conciliatory and pragmatic in their desire to achieve an outcome.

If I make a judgement on which of these is taking a ‘fair and reasonable’ approach to mediation I am human, but I would do all I can not to voice or act on that opinion. I leave that to Tribunal chairs and judges.