The Gibbons Report on reviewing employment dispute resolution practice represents a compelling call for a change in the way employment tribunals conduct their affairs, and raises the prospect of a much greater role for mediation in resolving workplace disputes.
The strength of the report lies in its plain-speaking critique of the existing employment tribunal system and its practical and achievable 17 positive recommendations.
Less predictability
So how do we move from the current prescriptive and complex dispute resolution process to one that, while being simpler, gives tribunals more discretion to decide cases and so has less predictability in results?
Litigation by its very nature is uncertain. To ensure the success of a new regime, it will be crucial to see the stance that employment tribunal chairs take in conducting directions and final hearings and to have consistency applied.
It may turn out to be idealistic to fulfil Gibbons’ hope that claimants be encouraged to present succinct cases, as a significant portion of parties (including well-paid advisers) cannot resist writing chapter and verse on their cases when a few words will do the job more effectively, but any movement in this area is welcome.
The right emphasis
Gibbons is right to place a strong emphasis on mediation as a way to resolve employment disputes. Mediation will be the way forward in this new workplace environment as it works in at least 80% of cases with the right mediator and represents the most effective way of helping business to resolve disputes and avoid red tape.
Mediation is informal, generally less expensive than taking the matter to court, and encourages personal responsibility by requiring a solution crafted by those involved rather than one imposed by a third party.
So against this background of change, what steps should HR professionals take relating to mediation?
Steps to take
- Embrace mediation. Overall, there is still a lack of understanding about the subject, and the use of mediation is considered to be a sign of weakness. The nature of employment law, which is based on an adversarial legal system where there can often be points scoring between parties, can lead to parties being afraid to mediate.
By embracing mediation, HR professionals will have another way of enabling their organisation to avoid potentially costly disputes and to divert management time away from dealing with litigation.
- Do not wait for the government legislation to be repealed. It is a paradox that while employment law has had an Alternative Dispute Resolution element with the involvement of Acas offering conciliation since 1984, it has been other aspects of civil and commercial litigation that have taken more of a pro-mediation approach – with the Civil Procedure Rules now taking into account how the parties conduct themselves prior to the issue of legal proceedings.
Employment law has been left behind by other parts of the English civil legal system, but if HR professionals start leading the cultural shift, this position could change dramatically.
- Start experiencing mediation as a way to resolve disputes. One of the most dramatic instances is when a person experiences that first mediation and sees that the case that did not look like it could be settled does, in fact, get settled.
Mediation does work – not least within employment law settings. By developing experience in this area, you can start making more effective judgements about the circumstances in which you should mediate, what type of mediator you should use, and how to conduct effective preparation for mediation hearings.
- Include mediation clauses within your firm’s contracts of employment and, where possible, with business suppliers. Such a step will allow reference to a third party to be triggered when notice of dispute is given.
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You should also give training to staff to remind them of the existence of these clauses and encourage management to use them.
Justin Patten
Principal, Human Law Mediation
