Should you refer a dispute to mediation before or after a formal process? Arabella Tresilian explains why mediation can help both early on and after a grievance or complaint has concluded.
This is the third video in my current #AskAMediator series, where I answer the questions I’m asked most often – this time about timing, from the lawyers, NHS in-house teams and HR professionals who are often the ones deciding when to bring mediation in.
If you missed the earlier videos, start with What Is Mediation? and How Is Health and Care Mediation Different From Other Kinds of Mediation?.
When is the right time to refer a case for mediation?
Earlier is usually better. Mediation works best before positions harden into formal complaints, safeguarding referrals, Court of Protection applications, grievances or tribunal claims.
Does that mean mediation is only for the early stage?
No – timing isn’t a fixed thing. Mediation can still be helpful once a formal process is already under way, running alongside a complaint, a safeguarding review, or any legal proceedings, without prejudicing anyone’s position.
Does referring early mean giving up a legal position?
No. It’s helpful for lawyers to know that referring early to mediation doesn’t mean giving up a legal position – mediation can run in parallel with live proceedings.
What’s the real trigger point for starting mediation?
The real start point for mediation isn’t a particular stage in the process. It’s when communication has broken down, but people are still willing, at some level, to talk – and there’s seen by all parties to be some potential value in a mutually determined settlement.
What should health and care lawyers and NHS in-house teams know about timing?
Raising mediation before a formal action or Court of Protection application can resolve what’s perhaps a communication breakdown, without it escalating into a formal or legal process that may not be necessary.
What should HR and service managers know about early mediation?
Early mediation can promote psychological safety at work, as well as preventing a grievance or tribunal claim – particularly where a health condition, disability or neurodivergence sits at the centre of the conflict.
Does mediation still help after a grievance or complaint has concluded?
Yes – just as important as early resolution, mediation has real value after a formal process has concluded. Once a grievance or a complaint has run its course, the relationship often still needs rebuilding, especially where the employee is expected to remain in post, or in a care context where ongoing care relationships continue. For those in HR, post-grievance mediation supports a sustainable return to work and reduces the risk of the same conflict resurfacing later.
What if I’m not sure whether it’s the right time?
Wherever you are in the stage of a disagreement – whether it’s early rumblings or something a bit more entrenched — there’s never any harm in contacting your mediator sooner rather than later, just to inquire, or start the ball rolling tentatively, and get their sense of whether mediation might be helpful. Your mediator will always treat your inquiry confidentially and support you and the parties to make the decision that’s best for everyone.
If you’re weighing up whether now is the right moment to bring in a mediator – whatever stage the disagreement has reached – get in touch. A confidential conversation costs nothing, and there’s no obligation to proceed.
Arabella Tresilian is the founder of Health and Care Mediation.
