An employee offered a mediator selected by their employer, paid by their employer and briefed by their employer is entitled to wonder whose mediator this is. Telling them not to worry is not an answer. The answer has to be built into how the appointment works.
Four Structural Protections
Joint acceptance. The mediator is proposed to both sides and must be accepted by both — and an employee who does not accept the proposed mediator can say so without that being a problem. That single feature converts a nominally joint appointment into a genuine one, and it is the point at which most of the suspicion resolves. Express terms, signed by everyone. The agreement to mediate states that the mediator acts for no party and advises no party regardless of who pays, makes no findings, and does not report to the employer on the merits — does not say who was reasonable, who was difficult, or who was right. A mediator who reported any of that would have become a witness rather than a neutral, and every subsequent participant in that organisation would be correct to be guarded. Nothing on the file but the outcome. The fact of the mediation and the agreed way forward are recorded; what was said is not, and participation cannot be used in appraisal or performance management. Independent advice, separately encouraged. Every participant is told to take their own advice — solicitor or union — and to take it before signing anything, which is the protection that does not depend on trusting anybody in the room.
What an Employee Should Ask For — and What Employers Get Wrong
Ask for all of it in writing, before participating. Those points are frequently given verbally and warmly at the start of a workplace mediation and then documented nowhere, which is precisely when they are worth least. A mediator or employer reluctant to put them in the agreement is telling you something useful. On the employer side, three errors recur. Briefing the mediator privately in advance about the background and “what really happened” — which compromises the appearance of neutrality even where it changes nothing, and which an employee will assume happened whether or not it did; anything the mediator needs to know can be provided to everyone. Expecting a report: an employer that wants to know who was cooperative has not commissioned a mediation, and asking afterwards puts the mediator in an impossible position. And choosing a mediator with an existing relationship with the organisation — a regular supplier, someone who has done work for HR before — which may be perfectly proper and will still look to the employee like the house neutral. In a matter with any sensitivity, distance is worth more than familiarity. More on fees and what they buy.
Sharing the fee is not the answer. It is standard in commercial mediation and inappropriate here: the parties are not commercially equivalent, and asking an employee to fund half a process addressing a workplace problem is neither realistic nor fair. Neutrality comes from the terms and the appointment, not from splitting an invoice.
Want the neutrality terms before deciding? They are provided as a matter of course: 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.