An employee offered mediation usually has the same four worries, and rarely voices any of them: can I say no, does saying yes mean I am dropping my complaint, does it look like I accept I was partly at fault, and will refusing count against me?
You Can Decline, and It Is Not Misconduct
Mediation is voluntary by definition — a process someone was required to attend and required to settle would not be mediation, and would not work. You can decline at the outset, you can participate and decline every proposal, and you can withdraw partway through. None of that is misconduct, none of it is a failure to cooperate with a reasonable instruction, and none of it should be recorded as either. An employer that treats a refusal as a disciplinary matter, or as evidence that a complaint was not genuine, has misunderstood the process badly. That said, it is worth making a considered decision rather than a reflexive one, and worth asking what the alternative actually involves: a formal investigation is slow, adversarial, demanding on complainants, and frequently concludes that conduct did not meet the legal definition of bullying while leaving the working relationship entirely unaddressed. Declining mediation is legitimate. Declining it without knowing what the other route costs is a decision made blind.
Agreeing Concedes Nothing
Three things follow from mediation making no findings about anything. First, attending is not a withdrawal of a complaint — a grievance can be paused rather than withdrawn while mediation is attempted, and it resumes at the stage it had reached if matters do not resolve; those points should be recorded in writing, along with the suspension of any policy time limits. Second, attending is not an admission by anyone: not by the person complained of, who has conceded nothing by agreeing to talk, and not by the complainant, who has not accepted that their complaint was unfounded or that they were partly at fault. Because the process determines nothing, there is nothing to admit. Third, no right is waived: the entitlement to have a complaint formally investigated survives, and so does the ability to bring proceedings. What ends a complaint is a written agreement you chose to sign, having been encouraged to take your own advice first — and nothing before that. One practical caution: statutory time limits do not pause for mediation. They run independently, they are short, and no employee should lose a claim because they were trying to resolve things sensibly — so check the dates at the start. More on grievances and pausing here.
The one situation where declining is clearly right: if you are genuinely afraid of the other person. Mediation depends on being able to speak freely and refuse an outcome you do not want, and fear makes both impossible. Say so — to the mediator, in confidence, if not to your employer. That answer ends the mediation question and starts a different and more appropriate one.
Weighing an offer of mediation? 01 5827148 — a first conversation is confidential and commits you to nothing.
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.