You are setting up a workplace mediation. The referrer, often someone from HR, says they want a copy of any written agreement the parties reach. It sounds like a routine request, but it changes the process in ways the referrer may not have thought through, and how you respond shapes both the parties’ experience and your own impartiality.
Is it unethical to agree?
No, it’s not unethical to agree that any written agreement is passed on to the referrer. Many workplace and court-connected programs share agreements with the referring body as standard practice. But what is important is that this condition is known to everyone before the mediation starts, and ideally before the parties agree to take part.
But transparency isn’t the whole issue. Requiring parties to provide a copy of any agreement reached to the referrer also impacts on their self-determination. While they still have self-determination about what they agree to, they should arguably also have self-determination in relation to who knows about the outcome.
Whether this reduction in self-determination and exception to confidentiality is justified depends on a few different considerations.
What the request does to the written agreement
Writing things down helps the parties. It makes the agreement clear, gives them a shared record, and reduces arguments later about what was agreed. But once the parties know their employer will read the document, they stop writing it for themselves and start writing it for the reader.
So if parties are required to provide a copy of any agreement reached to someone else, expect them to write for that audience. For example, parties may put in what they think HR wants to see: apologies, cooperative language, neat promises. This might mean that they don’t agree on anything else, or that if they do this becomes a private side arrangement. The odd result is that HR may get a less accurate picture of what was agreed than if sharing were optional.
Some of the most useful agreements are small, personal and a bit awkward. “I’ll say good morning.” “I won’t copy your manager into emails.” People are less willing to put these in a document their employer will read. What gets shared can end up generic and bland, rather than something that will actually change the working relationship in a positive way.
Questions to ask the referrer
When a referrer asks for a copy, I would want to work through these with them before agreeing to anything:
- What do you need it for? The answer usually falls into one of three types: (a) knowing the matter is resolved, (b) knowing the parts the organisation has to act on, like changes to reporting lines, workload or training, or performance management; or (c) the whole agreement. If (a) or (b) meets their need, it is hard to justify (c), and most referrers will accept a narrower version once they see the options laid out.
- What will you do with it? Who else will see it, where will it be stored, and will it sit on either party’s personnel file? Do they parties understand this?
- What happens if someone breaches it? If HR holds the agreement, does a breach flow back into the grievance or disciplinary process? If so, the agreement carries real consequences, and the parties need to know that before they sign. The referrer needs to have thought it through too.
- How many hats are you wearing? If the same HR team refers the matter, runs the grievance process and receives the agreement, mediation starts to feel like part of the grievance system rather than something separate. That can make parties less open, and less confident that you are impartial. Naming this early gives the referrer a chance to separate the roles.
- Who hands it over? If you deliver the agreement to HR, you look like you work for the organisation. It is better if the parties hand it over themselves, with your role finishing once the agreement is signed. Most referrers will agree to this once you explain why it matters.
You might say something like: “I can work with a requirement to share the agreement, but I want us to be clear about what you need and why, because the requirement changes what the parties will put in writing. Can we talk about whether you need the full document or just the parts the organisation has to act on?”
Explaining it to the parties
Whatever is agreed with the referrer, the parties need to know before they consent to mediate, not at the point of signing the agreement. In the intake or pre-mediation session, I would cover:
- Exactly what will be shared, with whom, and what will be done with it
- That everything said in the mediation stays confidential, and only the written agreement (or the agreed parts of it) goes to HR
- What happens if the agreement is breached, including whether it can feed back into a grievance or disciplinary process
- That they control what goes into the written document, and that arrangements between them do not all have to be in it
That last point needs care. Telling parties they can keep parts of their agreement verbal is honest, and consistent with self-determination. But it sits oddly next to the referrer’s assumption that the document is complete. I do not think the answer is to stop telling parties, since they will work it out anyway. The answer is to have already had the conversation with the referrer about what the document can and cannot tell them.
Be honest about the nature of the choice, too. If sharing is a condition of the process, the parties can only choose to take part or not. They cannot choose whether to share. In a workplace, where the employer holds more power, that consent is fairly weak. Do not dress a condition up as a choice. Say “if you reach a written agreement, a copy will go to HR, and that is a condition of this process” rather than implying they have a say they do not have.
Questions for reflection
- When a referrer asks for a copy of the agreement, do you ask what they need it for, or treat the request as fixed?
- Could you describe, right now, what your last referrer did with the agreement you sent them?
- How do you explain the sharing arrangement to parties at intake, and does your explanation present it as a condition or a choice?
- Have you seen parties write a sanitised agreement for the file while the real arrangements stayed verbal? What did that mean for follow-through?
- Who hands the agreement to the referrer in your practice, and what does that signal about your role?
If you’re interested in the organisational side of workplace mediation, including how mediation outcomes are documented, communicated and managed within workplace processes, you may also find Jon Graham’s On-Record Workplace Mediation webinar-on-demand valuable.
The webinar explores the role of on-record mediation in workplace settings, when it may be appropriate, and the practical considerations for mediators and organisations.
Learn more here: https://conflictmanagement.tangiblelaunchpad.com/webinar-on-demand-on-record-workplace-mediation-registration/