“Will this end up on my file?” is the first thing most employees want to know and the last thing most of them ask. The answer has two parts: what the statute protects, and what the terms say — and the second part matters as much as the first.
The Statutory Position
Under the Mediation Act 2017, communications made during a mediation — and the notes and records of them — are generally confidential and not admissible in later proceedings. That is what makes candour possible: a person can describe how something actually landed, acknowledge their own part in it, or float an arrangement they are not sure about, without any of it becoming evidence at a hearing months later. The limits are principled and are explained at the outset rather than discovered afterwards: where disclosure is necessary to implement or enforce an agreement reached, where it is necessary to prevent physical or psychological injury, where the law otherwise requires it, and where a matter concerns the mediator’s own conduct. Nobody should be told confidentiality is absolute, because it is not — and a mediator who oversells it has created a much bigger problem than the one they avoided.
What the Terms Should Say — and What Reaches HR
Beyond the statute, the agreement to mediate does the practical work, and in a workplace setting it should be explicit to the point of being boring. Ordinarily: the fact that a mediation took place is recorded, and the agreed way forward is recorded if one is reached. Nothing else is. Not what was said. Not what anyone conceded or acknowledged. Not who was cooperative and who was difficult. Not the mediator’s impressions of anybody. Critically, the mediator does not report to the employer on the merits — does not say who was reasonable, does not express a view on who was right, does not summarise the individual sessions. Doing any of that would turn the mediator into a witness rather than a neutral, and would make every subsequent participant right to be guarded. The terms should also state that participation and anything said cannot be used in performance management or appraisal, and what happens to notes afterwards. If an employer wants anything more than that, it has to be raised at the outset and agreed by everyone rather than quietly assumed — and an employer that wants a report on who was at fault has not commissioned a mediation. The full process is here.
Get it in writing. These points are frequently given verbally and reassuringly at the start of a workplace mediation and then not documented anywhere. Ask for them in the agreement to mediate before you participate — a mediator who is reluctant to put them in writing is telling you something worth knowing.
Questions about what would be recorded in your situation? 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.