Mediation works because people can speak freely, test options and make concessions they would never put in a letter. That only holds if the parties trust that what they say will not reappear later. So a mediation file should be deliberately lean: enough to show that the process happened properly and what was agreed, and very little about what was said along the way. Whether you are an external mediator, an in-house HR team, or a firm representing a party, the same principle applies.
What the file should contain
- The agreement to mediate, signed by all parties, including the confidentiality terms and the mediator's role.
- Referral and scheduling: who referred the matter, when, and the dates of each session.
- Attendance: who attended each session and in what capacity.
- Documents supplied to the mediator, and whether each was shared with the other side or given in confidence.
- The outcome: a signed settlement or written agreement, or a short statement that no agreement was reached.
- Follow-up actions agreed, with owners and dates, if the outcome requires them.
What to leave out
- Detailed notes of what each party said. Mediators often jot notes to follow the discussion. Many destroy them at the end of the mediation, and many agreements to mediate say they will. Decide your practice in advance and follow it every time.
- Offers and concessions made during the process, other than the final agreement.
- Private session content. What one party tells the mediator in private stays private unless they agree otherwise. It should not end up in a shared file.
- Opinions about the parties. "Seemed evasive" has no place in a mediation record.
Keep mediation separate from other processes
In workplace disputes, a mediation often sits alongside, before or after a grievance or disciplinary process. Keep the mediation file separate. If mediation fails and a formal process begins, the formal file should record only that mediation was attempted and did not resolve the matter, not what was said in it. Mixing the two undermines the mediation and can taint the formal process. For what a formal process should record, see disciplinary procedures: the records you need at each step.
Access
Restrict the file to the mediator or the person running the process, and whoever administers it. Line managers, colleagues and anyone who may later decide a formal case involving the same people should not have access. Check that restriction on the actual storage, not just in policy.
How long to keep it
The agreement to mediate and the outcome document are usually worth keeping for the period in which the settlement could be disputed or enforced. Scheduling and attendance records can often go sooner. Put mediation records into your retention schedule as their own class, and check your jurisdiction, since some places have specific rules on mediation confidentiality and on whether a mediator can be required to give evidence.
A final check
Before closing the file, read through it as if you were one of the parties. If anything in it would make them regret having spoken openly, it should probably not be there.
