Often I’m asked how many of the mediations I do are successful – and I struggle to answer. Why? Because it depends on how you define success.
Of course the simplistic definition would say that if the people involved are able to sign a written agreement then that is a success, and if they can’t then it is not. I can’t agree with this and here’s why. To be able to decide if the mediation is successful we need to understand what our objective is in having it in the first place. If the objective is to sign an agreement then the simplistic definition would be correct. In my view though this is not the objective. The purpose, as I see it, is to bring the people together to have a conversation and find a way forward. If they can achieve that but don’t sign an agreement then I’d still see that as a success.
Let me give you an example to explain. I mediated a case where a team member, let’s call her Jane, had an issue with her manager and had raised a grievance. Jane’s grievance had not been upheld and she subsequently went on long term sickness absence due to stress as she could not face working with the manager. Jane wanted to move departments but this was not an option and she had been offered a settlement agreement but had not accepted it. She was intending to appeal the grievance but took the mediation option. The mediation gave the two of them the opportunity to have a full and tough conversation about what had happened. The manager was willing to work with Jane but Jane had got to the point where this was not an option for her. She decided during the mediation that she would change her mind and opt to leave. Was this a failure? Not at all, they both had the chance to share their thoughts and Jane in particular felt that she’d had the opportunity to have her say and the discussion with the manager had helped her realise it was time to move on. The conversation gave her closure on the situation, she felt better and both were able to go forward, albeit by not working together.
In this example there is no agreement as the participants went their separate ways. But I could also envisage a situation where people agree to work together and don’t need an agreement. The key is that they are using mediation as communication between them has failed. Through mediation they are able to re-establish communication and address those issues which previously it had not been possible to discuss. In that way they have a positive outcome.
So why do you need an agreement at all? Despite what I’ve said above, I would still very much recommend getting a written agreement for the following reasons:
It captures clearly and specifically what each person has agreed so there can be no misinterpretation or confusion later on about what the outcome is
It can be used to refer back to when those involved want to review progress against what they said they would do
It can be shared with a line manager and / or HR in case further support is needed as they go forward
Finally, and most importantly, signing a written agreement is a clear demonstration both to themselves and each other that they are committing to this and that they are drawing a line under the past and agreeing to move forward. In other words, the psychological commitment is at least as, if not more, important than the written commitment.
To answer my own question in the title – yes, a mediation can be a success without an agreement, but in a successful mediation the outcome is normally more robust and sustainable if there is a written agreement.
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