Six months after the introduction of the statutory procedures for handling discipline, dismissals and grievances in the workplace, many HR and employment law professionals do not feel the procedures have made the resolution of issues any easier.
Although they were referred to as a ‘dispute resolution’ measures, they did (in most cases) nothing more than enshrine the most basic of procedures in statute law.
Therefore, as the type of issues arising in the workplace become more complex and are often not solved by the ‘win/lose’ outcome provided by an employment tribunal or an internal grievance procedure, the use of other forms of dispute resolution, and mediation in particular, is growing rapidly.
What is mediation?
Mediation is an agreed, voluntary and non-binding process by which a neutral and independent third party helps the parties reach an acceptable resolution to their dispute. Mediation needs to be:
- Agreed: For mediation to take place, the parties must agree to it. That could be ensured by building an agreed option for mediation into internal grievance processes, or by individual agreement at any time. Having a mediation stage built in has the added advantages of providing the option in all cases, and demonstrating a mindset of resolution, not of conflict, in the workplace.
- Voluntary: Mediation works when parties are willing to settle. No-one can be forced to mediate, and no-one can be forced to settle. If a party is not willing to try and resolve the problem, mediation will not work.
- Non-binding: All aspects of a mediation are without prejudice and confidential. Therefore, a party can explore settlement options in a constructive way without any risk of the proposal being used against them later.
- Third party: The independence and neutrality of the mediator is, of course, crucial. Both sides must invest trust in them and the ability of a mediator to build rapport with both parties is vital. During the process, the mediator will receive and retain information that is wholly confidential to one party. They must be trusted to protect that information, unless and until they have permission to reveal it. Proper training, accreditation and evaluation of a mediator is therefore vital, because the opportunity for settlement that mediation provides can be lost [and a bad situation made worse] if the mediator is insufficiently skilled.
Unlike other internal or external processes, mediation works because the parties themselves provide the answers. No-one judges, decides or resolves the dispute, other than the parties. It is, after all, their dispute, and therefore a ‘solution’ will only work if they agree to it.
The key to this is the focus that the mediator puts on the future, not the past. Unlike other processes, which are designed to find out what has happened, mediation focuses on what will happen, and, for example, how the parties will work together in the future, or how incidents of discrimination can be avoided.
How and when to mediate
Do not be afraid to propose mediation. It is not a sign of weakness – rather, it shows a willingness to resolve, not perpetuate, disputes.
There are many mediation service providers, and almost all mediators will accept direct instructions. Most local courts have mediation schemes, and will advise on where to find mediators. There is no ‘set’ form of mediation, and the mediator will guide the parties through the process.
Not all disputes are right for mediation. If a party is seeking to establish a precedent, then mediation would not be right. Otherwise, almost all internal and post-termination disputes can be resolved through mediation if the parties agree.
If you believe that you have a case that is suitable for mediation, then ask either your lawyer, or a mediation provider to discuss this with you. They should be able to explore whether or not the dispute is really appropriate for mediation.
Does mediation work?
Yes, it does – 80% of cases are resolved in one day, and most of the remainder settle shortly thereafter. Seemingly intractable internal grievances, complex claims for discrimination, and collective disputes are all areas where mediation works, in addition to the more ‘straightforward’ claims, such as for unfair dismissal.
Equally, if you are trying to agree on changes in workforce structure, policies and procedures or are engaged in pay negotiations, mediation is a way of resolving the dispute without publicity, and certainly without escalating the problem. It involves a more co-operative mindset than traditional negotiation.
Michael Ord is partner, Eversheds LLP Human Resources Group, and registered CEDR mediator