Mediation is voluntary
Unlike a workplace investigation (which an employer can direct an employee to participate in), mediation requires both parties to agree to participate. An employee cannot be forced to attend or forced to reach agreement at a mediation session.
Consequences of refusing
While an employee cannot be disciplined solely for refusing mediation, refusal can have practical consequences:
- Fair Work Commission proceedings. If a related unfair dismissal or general protections application is before the Fair Work Commission, Commission members may take a dim view of unreasonable refusal to attempt resolution — this can affect conciliation outcomes and, in some cases, costs.
- Employer's response to the dispute. An employer who has offered mediation in good faith and been refused may feel more confident proceeding with disciplinary action or other steps to manage the situation.
- Missed opportunity. Many workplace disputes that proceed to litigation could have been resolved — at lower cost and stress — through mediation. Refusal often prolongs the conflict.
When is refusal reasonable?
Refusal may be reasonable where:
- The employee has safety concerns about meeting the other party
- The dispute involves allegations so serious that mediation is not an appropriate first step (for example, serious misconduct requiring investigation and findings before any resolution is possible)
- The employer has not offered adequate support — such as permitting a support person to attend
Can an employer make mediation a condition of employment?
An employment contract or workplace policy may require participation in a dispute resolution process. If mediation is included in such a process, an employee may be obliged to attend — though they cannot be forced to agree to any outcome. Seek legal advice if your employment agreement contains such a clause and you are uncertain of your obligations.
See also: workplace investigation vs mediation — to understand when investigation is the more appropriate process.
Sources