Legal opinion: Limited future for workplace mediation

Workplace mediation is invaluable. Well-structured mediations allow issues to be resolved quickly, with minimal expense. This process can resolve issues at an early stage, or further down the line. Business solutions can be brokered, rather than be driven by a determination of who was “right” and “wrong” on the law.

Businesses that have adopted mediation as part of their dispute resolution armoury boast high levels of success, and claim that it promotes a positive culture.

Now is an opportune moment for mediation to expand its horizons. The prevailing climate is forcing employers to streamline their workforce and deal with employment issues economically, quickly and privately. The Employment Bill reforms in April 2009, will (hopefully) herald a new age of flexibility in resolving disputes, encouraging parties to take ownership of the resolution process. Mediation could well become the popular choice.

However, mediation is not the perfect answer. Criticisms can be made of it, not least that there is a lack of well-recognised service providers and regulation of mediators. Without the ability to rely on reputable independent mediators, it is hard to see how either party will be tempted to rely on this method. This is particularly true of employees, who may be naturally suspicious of a forum that, of necessity, the employer will organise.

Mediation has its limitations in the types of dispute it can resolve. It is most effective where the issue is relationship based: for example bullying or harassment. But it also requires both parties to aim to maintain the employment relationship – not an easy requirement.

A lack of awareness of and aversion to mediation is prevalent in the UK. A 2008 Acas research report indicated that 7% of managers used mediation, and only a further 56% had even heard of it! If mediation is to become ingrained in the workplace its profile needs to be raised, with parties being educated in what it involves, achieves, and where to go for help.

What is the future for mediation? Should it be compulsory? Michael Gibbons, an advocate of mediation in his 2006 review of the statutory dispute resolution procedures, has commented that this may be necessary if the new regime does not reduce claims.

The new Acas Code on Discipline and Grievances has stopped short of this, by including references to mediation in the (non-binding) foreword rather than the body of the code itself, recognising that the success of mediation lies in it being voluntary and flexible, rather than another procedural hoop.

Another option is for Acas to become more involved in mediation, perhaps on the back of its recently published guide to mediation. However, the Employment Bill provisions seem more focused on its role in conciliation of disputes. When the Bill comes into force, Acas’s duty to conciliate will no longer be subject to fixed periods after a claim has been issued. In contrast, its duty to conciliate in pre-claim disputes will be reduced to a power, to relieve them of the obligation to conciliate where there is little prospect of success.

This is a clear indication of the government’s approach to making early informal methods of dispute resolution compulsory.

As things stand though, there is still no way to prevent mediation simply becoming a box-ticking exercise. The bottom line is that you cannot force parties to get together and act reasonably, but gentle persuasion at an early stage can go a long way.

Key points

• Mediation has undeniable attraction as a method of solving workplace disputes

• Current market conditions may also favour mediation

• However, it is not appropriate for all workplace disputes

• It is also not widely used or trusted in the employment sphere

• Parties cannot be compelled or even enticed to use mediation if it is to genuinely be constructive

• It can therefore only ever have a limited role to play

Caroline Carter, partner, Ashurst

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