In recent years there seems (anecdotally, at least) to have been a marked increase in litigation involving employees with mental health issues. Litigation can be especially challenging for people with those types of issues. Therefore, one might have expected there to have been a rapid growth in alternative forms of resolution for such cases, particularly workplace mediation. However, we have noticed that many mediation organisations suggest that workplace mediation is actually inappropriate when the employee is suffering from mental health issues. We find this approach both disappointing and completely counter intuitive.
We were particularly surprised to discover that a Google search on whether mental health issues were unsuitable for workplace mediation produced as its top result a free online guide to workplace mediation which states in categoric terms: “Mediation should not be used when one of the parties has learning difficulties or is experiencing mental health problems. These difficulties can surface during the course of a mediation process, in which case the mediator should stop the process and advise the parties accordingly.” We strongly disagree with this stance and suggest that if such opinions are widely held there is going to be a large gap in the availability of appropriate resolution options for people with mental health issues. We believe that almost the opposite approach should be taken. In our view workplace mediation can be an especially useful and valuable tool when an employee has mental health issues.
Of course, mediation can be stressful and difficult for anyone, irrespective of their mental health, but the possibility that one of the participants might have a recognisable mental health problem, is really just one of the many factors that the mediator must take into account. In reality, it is not significantly different from the kind of difficulties that are posed by other disabilities or impediments. Compared to litigation however, there are a number of factors in mediation which may assist a person with mental health issues:
- The process is a confidential one and is not exposed to public scrutiny
- The process is less adversarial and more collaborative
- The mediator is not there to criticise nor to make any form of judgment as to who is right or wrong.
- The whole process is much less formal and the mediator can provide a safe and empathetic space in which difficult issues can be discussed and resolved.
- The participants have a high degree of control over the process which is entirely voluntary and can be stopped at any time.
- Mediation is a very flexible way to deal with conflict, allowing for a whole range of different approaches to be taken. Sometimes a round table discussion will be useful and appropriate, sometimes something more akin to shuttle diplomacy will have to be adopted with the parties never meeting face to face. There are also a host of other approaches that allow for meetings to be convened between others involved such as the lawyers meeting alone with each other or with the mediator or even the parties meeting without their representatives. This flexibility can be hugely beneficial to someone with mental health issues.
- The range of potential outcomes is also very beneficial compared to the sorts of outcomes that could be achieved by bringing employment tribunal or other claims. Indeed, it is often said that the potential outcomes in mediation are limited only by the imaginations of those involved. While the employment relationship continues, the scope for creative outcomes that result in a win/win for all concerned is even greater.
Where a participant with a mental health issue is involved in a mediation, the mediator must be satisfied that the person understands what is going on and what is being discussed and agreed and needs to ensure that there is a ‘level playing field’. In order to ensure fairness where a vulnerable person is involved, there is always a risk that the mediator will be perceived by the employer to be lacking impartiality, but there is a world of difference between empathy and sympathy and most employers find the intervention of the mediator to be positively beneficial. Provided everyone is satisfied that the mediator is working equally hard for all concerned, mediation can be a very effective way of resolving workplace issues for employees with mental health issues.