Training matters — workplace mediation is a distinct discipline and not something a manager or a lawyer simply picks up. But once you are choosing between trained mediators, the credential tells you almost nothing about which of them will actually help. These four questions do.
1. Will They Tell You Not to Mediate? — 2. Do They Know the Legal Frame?
The first question is the most revealing, and it is diagnostic: ask what they would decline. A workplace mediator who cannot readily list the situations they would refuse — serious misconduct, harassment on discriminatory grounds, safety matters, protected disclosures, a complainant who wants a formal investigation, genuine fear — is a mediator whose commercial interest is doing your mediation rather than getting the sorting right. The single most valuable thing a workplace mediator provides is often the answer “this one needs investigating”, and it has to come before an engagement letter rather than after. Related, the second: do they understand the legal architecture the situation sits in? Not to give legal advice as mediator — they act for nobody — but because whether something engages a statutory framework, whether a complainant is entitled to a determination, what pauses and what does not, and which time limits are running are all judgements that shape the process. A mediator who has to have the difference between bullying and harassment explained on the day cannot design safely around it.
3. What Do They Put in Writing? — 4. How Would They Design It?
Ask to see the agreement to mediate before you commit, and check that it says the things that matter: the mediator acts for no party and advises no party regardless of who pays; no findings are made and no report on the merits goes to the employer; participation and anything said cannot be used in performance management or appraisal; declining to agree an outcome is not misconduct; exactly what is recorded and what may reach a personnel file; that no complaint is withdrawn and no right waived by participating; and that everyone is encouraged to take independent advice. Those points are frequently given verbally and warmly and documented nowhere — and a mediator reluctant to put them in writing is telling you something. Finally: ask how they would design this particular situation. Who would they see, in what order, would there be a joint session and on what basis, what happens if one person will not be in a room with the other, who else needs involving, and is there a review point. A mediator who describes the same process regardless of what you have told them has a template rather than a design — and workplace matters, especially team matters and anything involving a reporting line, live or die on the design. What the process should look like.
One thing worth ignoring: resolution statistics. Nobody’s figures are audited, cases self-select enormously, and a mediator who declines the hard ones will always show better numbers than one who takes them. Ask about exclusions, terms and design instead — those answers are checkable.
Happy to answer all four before anyone commits to anything: 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.