Mediation | Resolving Workplace Disputes | Employment Law

Explore the essentials of workplace mediation, from understanding its role to mastering preparation and outcomes for conflict resolution.

What is mediation?

Mediation in the workplace involves an independent mediator assisting parties, typically an employer and employee, to resolve disputes in a semi-formal, confidential setting. It offers a negotiation process aimed at finding flexible, creative solutions to workplace issues. This approach can help maintain employment relationships and provides a cost-effective alternative to formal legal proceedings. Mediation is often used for employer-employee disputes but can also apply to disagreements among employees.

Is mediation a legal requirement?

In Australia, mediation is generally a voluntary process, not a legal requirement. However, it is considered an important aspect of acting in good faith within an employment relationship. There may be situations, such as those outlined in employment contracts or enterprise agreements, where mediation is stipulated as part of the dispute resolution process, making it a required step in those specific cases.

The mediation process

The mediation process in the workplace typically involves initial assistance through email or phone to resolve disputes quickly, a semi-formal meeting between the parties with the mediator to discuss the problem and explore solutions, and the option for parties to grant the mediator power to make recommendations or binding decisions.

The mediation process in the workplace varies but generally includes certain key steps:

  1. Early assistance where mediators may first try to resolve the dispute through preliminary email and phone conversations, aiming to find a solution without a formal meeting.
  2. Meetings if needed, a semi-formal meeting is arranged where parties discuss the issue with the mediator and explore potential solutions.
  3. Giving the mediator powers where the parties can agree to empower the mediator to make a written recommendation or binding decision, ideally leading to a settlement acceptable to both parties.
  4. Record of settlement are agreements reached are documented in a legally binding record of settlement. Signing this document means parties cannot later take the same issue to the Fair Work Commission or an employment court.

Who should act as an independent mediator?

An independent mediator should be a neutral third party, unaffiliated with either side of the dispute. Typically, mediators are not managers or direct colleagues of the involved parties to avoid bias. Their commitment is to a fair mediation process, focusing on assisting parties in resolving their issues. Mediators are obligated to withdraw from any case where there might be a potential conflict of interest to maintain the integrity of the mediation.

The role of a mediator

The mediator's role includes several key responsibilities:

  1. Facilitating open dialogue where they encourage both parties to communicate openly, helping them to articulate and understand the real issues at hand.
  2. Identifying common ground where the mediator works to find common interests and areas of agreement between the parties, which can serve as a foundation for resolution.
  3. Guiding problem-solving where they assist in navigating through the problem, often uncovering solutions that may not be immediately obvious to those involved.
  4. Exploring settlement options where mediators encourage negotiation and explore various settlement possibilities, aiming to reach an agreement that is acceptable to all parties.
  5. Finding creative resolutions as their goal is to find innovative solutions that allow everyone to move past the issues, fostering a sense of closure and progress.
  6. Assessing risks to provide an evaluation of the risks associated with the dispute remaining unresolved, offering insight into the potential consequences of further escalation.
  7. Additional roles including engaging in broader workplace activities such as training, team events, and staff mentoring, contributing to a healthier, more collaborative work environment.

What skills does an effective mediator have?

To be an effective mediator, particularly when dealing with workplace conflicts in Australia, certain key skills and knowledge are crucial. Although there are no mandatory qualifications required, an effective mediator typically have:

  1. Training in resolving workplace conflict with skills in conflict resolution, negotiation, and understanding the dynamics of workplace disputes.
  2. In-depth knowledge of employment law helps in guiding the mediation process within the legal framework and ensures that the solutions are compliant with legal standards.
  3. Understanding of current workplace trends enables a mediator to relate to and effectively address the specific challenges faced in modern work environments.
  4. Interpersonal and communication skills are vital for facilitating discussions, ensuring clear understanding between parties, and creating an environment conducive to open and productive dialogue.

Mediation and arbitration

Mediation services are available through various channels, including community organisations and private dispute resolution providers, often at free or low-cost. Additionally, the Fair Work Commission in Australia can assist with informal mediation processes in certain situations.

For more detailed information about these services, including assisted mediation, the Fair Work Commission's website is a valuable resource.

In some instances, parties involved in a dispute may opt for arbitration. This process differs from mediation in that the arbitrator (who may initially act as a mediator) has the authority to make a binding decision after hearing each party's perspective. The arbitrator's decision is final and must be adhered to by all parties. This option is often chosen when parties seek a definitive resolution to their dispute.

Representing yourself

Representing yourself during mediation is common. When preparing for and participating in a mediation meeting, focus on presenting facts objectively without being influenced by emotions. While technical knowledge isn't necessary to represent yourself in mediation, effective listening, clear responses, and an open mind towards dispute resolution options are crucial important.

Mediation representatives

If you're not comfortable representing yourself in mediation, you have the option to use a representative or advisor. This individual could be a friend, a union representative, or a professional advisor like an employment advocate or lawyer.

Professional advisors can be potentially costly, though provide comprehensive services during mediation, including:

  • Gathering and organising documentation that outlines the facts of the case.
  • Referencing relevant aspects of employment law to support your position.
  • Assisting in formulating what you will say during the mediation.
  • Expressing your views and representing your interests at the meeting.
  • Negotiating a solution and aiding in drafting the record of settlement.

In addition to a representative or advisor, individuals involved in mediation are legally entitled to bring a support person. This person's role is primarily to provide emotional support, and they usually do not actively participate in the mediation discussions. Their presence can offer reassurance and comfort during what might be a stressful process.

Preparing for mediation

To prepare for mediation, organise your thoughts about the issue, how it started, and your desired resolution. Additionally, consider the other party's perspective, including their view of the problem and possible solutions. This preparation helps facilitate a more effective and solution-focused mediation process.

Dispute resolution

In dispute resolution through mediation, once an agreement is reached, it is recorded and signed by both parties, making it legally binding. Each party receives a copy of this agreement for their records. If one party fails to adhere to the agreed terms, the other can seek enforcement through the Commission or an employment court.

What if you can't reach an agreement?

If mediation doesn't result in an agreement, possible next steps include:

  1. Adjournment where you agree to reconvene at a later date for further discussion.
  2. Arbitration which grants the mediator arbitrator powers to make a binding resolution recommendation.
  3. Fair Work Commission where matters may be escalated to for external support.


Confidentiality is a key aspect of mediation. All information, including documents and settlement records, must remain within the mediation process and not be shared externally. Mediation details cannot be used as evidence in court, though parties may agree to waive confidentiality in escalated cases.

For dispute resolution assistance, contact Employment Compass' 24/7 Advice Line on 1300 144 002.

Frequently asked questions

What is Mediation in the Workplace?

Mediation is a process where an independent mediator helps resolve workplace disputes in a confidential and semi-formal setting. It aims to find mutually acceptable solutions to conflicts between parties, such as an employer and employee.

Is Mediation Legally Binding?

If both parties reach an agreement during mediation, it is recorded and signed, making it legally binding. This record of settlement is enforceable, and both parties receive a copy for their records.

What Happens if Mediation Does Not Result in an Agreement?

If mediation fails to resolve the dispute, options include adjourning for a later date, turning the process over to arbitration, or escalating the matter to the Fair Work Commission.

Is the Information Discussed in Mediation Confidential?

Yes, all information shared in mediation, including documents and settlement records, is confidential and cannot be used as evidence in court unless confidentiality is waived by both parties.

Can I Bring a Representative or Advisor to Mediation?

Yes, if you're uncomfortable representing yourself, you can bring a representative or advisor, such as a friend, union representative, or professional advisor like a lawyer. You're also entitled to have a support person for emotional backing.

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