Employment law: is compulsory mediation a good idea?

Compulsory mediation looks set to become the government’s latest weapon in the long-running battle to reduce the number of employment tribunals, but many in the legal industry doubt that grievances can be solved by forcing both parties together.

Rita Donaghy, chair of conciliation body Acas, is certainly sceptical that adding another step to the legal framework will bring any great results, especially at a time when most people are clambering for less bureaucracy.

Adding to the already lengthy procedures for dealing with employment disputes could prove expensive for employers and Phillip Wood, an employment partner at Dawsons Solicitors, is not convinced it would help reduce tribunal claims.

“This will go down particularly badly with employers because they already have so many hoops to jump through before dismissal. The government will probably want to use a more succinct version of mediation but it will still be costly,” he said.

Voluntary vs compulsory

Smair Snoor, a specialist employment barrister at Seven Bedford Row, is also unconvinced and believes mediation could be a waste of time unless there is a binding agreement that both parties would abide by a final decision.

“The whole point of mediation is that both parties have some good will and want to take part voluntarily,” he explained.

However, he conceded some sort of mediation could well take the heat out of employment disputes, especially in cases of perceived discrimination.

“Sometimes employees wrongly assume the reasons for certain behaviour and this would be an opportunity for both sides to coolly present the facts,” he said.

Procedural hurdles to tribunal

Peter Schofield, director of employment policy and legal affairs at manufacturing body EEF, thinks the way of resolving disputes is now so inadequate that any idea is worth considering.

“We have to change the culture that exists at the moment at tribunals where paying a sum of money is the way disputes are resolved,” he said.

Schofield believes the current system of dealing with disputes is seen by most as an abject failure.

“The statutory grievance process is a great example of how good ideas can go wrong. They are now just seen as procedural hurdles on the way to a tribunal,” he said.

The procedures were the Department of Trade and Industry’s last big idea to reduce tribunal numbers, but Schofield said any new measures must be designed around the workplace and made workable.

“If you simply say you must go to mediation before a tribunal it won’t work, but if it’s implemented properly then there is hope.”

Mediation proponents

Cary Cooper, professor of organisational psychology and health at Lancaster University Management School, is another expert who thinks the idea could have some merit.

“It won’t work for everybody but even if it only reduced tribunals by 10% to 15% that would still be massively useful. Lawyers probably would think this is a bad idea because the longer a dispute drags on the more they get paid,” he said.

Fiona Colquhoun, a director at not-for-profit mediation body the Centre for Effective Dispute Resolution (CEDR), is not convinced compulsion is the best way forward.

“I think all parties should be asked to seriously consider mediation, but you don’t want to create an even more elongated process that drags on and on. The current statutory procedures are a real mess because they’re already far too complicated.”

As a sort of third way CEDR recommends employers develop internal policies that promise to use mediation as a way of resolving workplace disputes in-house.

Although opinion seems divided the sheer cost and management time involved in compulsion will leave many employers opposed to the idea and because mediation is essentially a consensual process it’s difficult to see it being forced on people successfully. 

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