Mediation is genuinely good at a great many workplace problems. It is completely wrong for others, and an employer that reaches for it because it is quicker and less disruptive has not saved anything — it has failed a complainant, created exposure, and will usually run the investigation anyway in far worse conditions six months later.
Harassment Is Not Bullying, Legally Speaking
This distinction is routinely blurred in workplaces and it matters enormously. Bullying, as described in the Code of Practice, is repeated inappropriate behaviour undermining dignity at work — it is not tied to any particular characteristic. Harassment on discriminatory grounds and sexual harassment sit under an entirely different legal framework, connected to protected characteristics, and they engage an employer’s obligations directly and specifically. A single incident can constitute harassment where a single incident would generally not constitute bullying. And an employer’s position in respect of such complaints depends substantially on how it responded — which means that responding to a complaint of sexual harassment with an invitation to have a facilitated conversation is not merely inadequate, it is the kind of response that makes an employer’s position considerably worse. If a complaint is capable of being characterised as harassment on any discriminatory ground, the starting assumption should be that it needs investigation, and advice should be taken before anything else is offered.
The Full List, and Why It Is Applied Strictly
Mediation is the wrong process where: allegations amount to serious misconduct requiring a determination; there is assault, threat or any potential criminal dimension; the complaint concerns harassment on discriminatory grounds or sexual harassment; a genuine health and safety concern arises; a protected disclosure is involved; multiple complainants allege the same conduct against one person, which may indicate a pattern requiring findings whatever any individual complainant would accept; anyone is genuinely afraid of the other person, since a voluntary process cannot be conducted safely under fear; or the complainant simply wants a formal investigation, which they are entitled to. That last one is worth dwelling on, because it is where well-meaning employers most often go wrong: encouraging, nudging or repeatedly re-offering mediation to a complainant who has asked for a formal process is pressure, it will be perceived as pressure, and it looks exactly like what it is if the matter is later examined. Offer once, clearly, with the alternative explained, and accept the answer. The full exclusions page is here.
A test worth applying: if the complaint were upheld, would something have to happen to somebody? If yes — a sanction, a finding, a record — then a process capable of producing that is required, and mediation cannot substitute. Mediation resolves relationships. It does not resolve allegations.
Unsure which category a complaint falls into? That is the question worth one call: 01 5827148.
Richard O’Shea — Solicitor & Mediator
Solicitor at Mary Molloy Solicitors (established 1981) and holder of the Law Society of Ireland Diploma in Mediation. The firm also runs a substantial employment practice, which is why the honest sorting question — whether a situation needs a mediation or an investigation — gets answered at the first call rather than halfway through. Workplace mediations are conducted on site, at neutral venues, at The Ormond Building on Ormond Quay, at the Kilkenny office — or fully online. The mediator is appointed by both sides and acts for neither. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about workplace mediation and Irish law. It is not legal advice and does not create a solicitor—client relationship. Every workplace situation turns on its own facts, and advice on yours requires a consultation.
The mediator is not your legal adviser. Where Mary Molloy Solicitors is appointed as mediator, the mediator is neutral: the mediator acts for no party, advises no party, makes no findings and decides nothing. This is so regardless of which party is paying the fee. All participants are encouraged to take independent legal advice, and in particular to take advice before signing any agreement reached in mediation. Employees may wish to seek advice from their own solicitor or trade union. The firm does not act as mediator in any matter in which it acts, or has acted, for a party — conflicts are checked before any appointment is accepted.
Mediation is not a substitute for a required process. Some matters must be investigated rather than mediated, including allegations of serious misconduct, matters engaging health and safety duties, and protected disclosures. Nothing on this site suggests that mediation should displace an employer’s statutory obligations, a grievance or disciplinary procedure where one is required, or a complainant’s entitlement to have a complaint formally investigated or to bring proceedings.
Fees. Fees for mediation are agreed in writing before the mediation begins, and fees for legal services are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Tax. Nothing on this website is tax advice. Where any payment or arrangement has tax consequences, those questions belong with your accountant or tax adviser and with Revenue’s own guidance, and are best addressed before anything is signed.