ACAS has published a new draft Code of Practice on Disciplinary and Grievance Procedures, which is open for consultation until 23 September and was previously discussed by our Employment team in an article at the start of August.
Whilst the original 2009 Code refers to both internal and external mediation and potentially appropriate solutions, the new draft Code includes a standalone “mediation and facilitated conversations” section, which explicitly requires employers to consider whether mediation or a facilitated conversation is an appropriate solution to resolve concerns. It advises that an independent third party, who is an impartial accredited mediator or trained facilitator, should assist. They can be either external or a trained, independent individual within the organisation. Using a mediator or having a facilitated conversation means that any ongoing formal disciplinary or grievance procedure can be paused, which may make it possible to avoid using or continuing those formal procedures.
What is mediation and how does it work?
Mediation and facilitated conversations are confidential, voluntary processes whereby an independent third party helps individuals to come to a mutually agreed resolution. They can be started at any stage of a disciplinary or grievance process, even where there is no ongoing process.
Before the mediation begins, the mediator will meet all parties to identity the relevant issues in dispute. The mediator will have a joint discussion with the parties so that all parties can make their position clear, and the mediator can explain how the session will work, including what’s expected of everyone involved. The mediator will then speak privately with each party in a confidential environment, and will bring the parties together if appropriate, to see if an agreed position can be reached.
Why should you consider mediation?
When correctly and appropriately introduced, mediation can be highly successful. It has been estimated that workplace mediation resolves more than 80% of disputes, with the average mediation lasting just over one day. Even ahead of the draft Code of Practice being finalised, this statistic demonstrates that employers should routinely be considering the use of mediation.
The draft Code acknowledges that mediation is not suitable for every situation. For example, it may not be appropriate where a decision on statutory rights is required, where someone else needs to make a decision for the situation to be resolved, or where there is a significant power imbalance which cannot be safely managed by the process.
However, when mediation is a suitable approach, there are numerous benefits to introducing it in the workplace. Research published by Acas at the end of last year highlighted the impact of workplace disputes. With 2 in 5 adults reporting workplace conflict and an annual cost to Britain’s employers of £28.5 billion, it is easy to understand why the new draft Code includes a shift towards early-stage resolution.
Mediation allows employers and employees to resolve issues in the early stages, for example when working relationships have begun to deteriorate, or communication is starting to break down. Having a neutral third party can help to address difficulties in communication, help employees to explain their concerns, and identify resolutions in a proactive and healthy way, repairing and preserving workplace relationships.
The confidential nature of mediation also ensures that employers and employees can freely explain their concerns without fear of adverse consequences. As mediation is a voluntary process, parties can withdraw at any time. Highlighting this fact can often be a helpful tool to get discussions started, particularly when participants are wary about the process.
Disciplinary and grievance procedures can take up an enormous amount of management resources and have a substantial negative impact on those involved. In the worst-case scenario, they can irreparably damage employer-employee relations and inter-employee working relationships. Resolving issues at an early stage therefore reduces operational burdens on employers and mitigates the risk of a deterioration in working relationships. Beyond these internal procedures, mediation can also help to avoid tribunal proceedings, and with it the potential risk of reputational damage and the associated time and cost of defending claims. It can also help to avoid significant delays waiting for Employment Tribunal hearings to take place.
The Ministry of Justice reported that, in the year ending March 2026, the open caseload increased by 55% compared with the previous year. A straightforward Employment Tribunal claim is likely to take around a year to reach a final hearing, with complex discrimination claims taking substantially longer. These timeframes may be much longer in some regions and where a lengthy hearing is required.
The anticipated changes under the Employment Rights Act 2025 will likely mean an increase in claims so these figures will continue to rise. The time limit to bring a claim will increase from 3 months to 6 months in October 2026, and from 1 January 2027 the period of continuous service to qualify for unfair dismissal claims will decrease from 2 years to 6 months. Early intervention through mediation will avoid getting trapped in the Employment Tribunal system.
How can we help?
At Capital Law, we regularly help employers and employees resolve workplace disputes through mediation. Our experienced mediators provide a structured, confidential environment in which individuals can have constructive conversations, explore the issues at the heart of the dispute, and identify practical ways forward.
As independent facilitators, we do not take sides or impose outcomes. Instead, we help participants rebuild dialogue, gain a better understanding of each other’s perspectives and work towards solutions that they can both support.
For more information on how our mediation services can help your organisation, please contact the team today.
