Mediation: how it can help to resolve employment disputes
The at times high octane relationship which can exist between an
employer and its employees has often been compared to marriage. It
is therefore perhaps curious that in affairs of the heart it was
recognised as long ago as 1938 – when Relate (formerly the Marriage
Guidance Council) was set up that a third party could
successfully guide warring parties and bring them back from the
brink of divorce, and yet nearly 80 years later very few employers
use outside third party mediators to assist in the process of
resolving conflict in the workplace.
The 2004 Dispute Resolution Regulations were
introduced in part to get parties to speak to each other before
they headed for their nearest employment tribunal.
Whilst this is of course an admirable aim, it is
disappointing that the advent of these regulations has not heralded
a more fundamental change in the culture of dispute resolution in
the workplace.
Employers unhappy with their staff (or with the relationships
between staff) generally act as if the only choice they have is
between disciplining one of the combatants, or, where the parties
are equally at fault, to remove the difficult individual (for which
read the most junior or most expendable) with a discrete pay off.
In one case, for example, a director of finance was swiftly removed
from his post by St George's Healthcare NHS Trust because of
a personality clash.
It would be valuable for employers if, before the parties have
become embittered and entrenched, they created an
environment for resolving disputes or differences without
commencing formal procedures. From a costs perspective
(human, management and legal) this is an expensive gap in the
strategies which employers can adopt.
In 2004/2005, 86,181 cases were initiated in the Employment
Tribunal. Of these only 26,472 were in fact successful at an
Employment Tribunal i.e. approximately 18% of the claims brought.
Despite this, only 755 costs awards were made in favour of
employers in relation to these claims i.e. 0.8% and the median
award was £1,000.
What this means for employers is that if an employee
brings a claim against them, however unmeritorious it may be, they
are very unlikely to recover any costs, and even if they
do, they will generally bear no relationship to the actual costs
the employer has had to incur. So, even where an employer has a
good defence to a claim in law, the employer will lose in terms of
management time and expense.
Mediation can provide a structured, effective means of avoiding
Employment Tribunals. Using an independent, third party to guide
negotiations can often help to defuse difficult situations, and the
parties can make comments to the mediator, who, properly managing
the flow of information, ensures that information is transmitted in
the most helpful way.
In many cases, mediation can be cost effective, discreet
and provide certainty to the parties. It can also deliver
to the parties benefits unavailable in an employment tribunal.
Where the relationship looks as if it might be salvaged, the
parties can plot both steps for change to achieve harmony and also
an exit strategy. That way, if the old personality clashes rear
their ugly heads again, the parties will already have agreed how
they will part the ways. If the relationship is beyond repair,
benefits can be obtained which cannot be ordered by tribunals:
agreed references, effective restrictive covenants and
secrecy.
Employers need to develop effective strategies for introducing
mediation into the workplace not only when relationships have
already broken down, but also as a means of avoiding a breakdown.
Mediation services are being provided by a range of
providers, from specialist employment lawyers to mediation
specialists such as CEDR (the Centre for Effective Dispute
Resolution) and independent mediation consultants. In addition,
ACAS provides a variety of dispute resolution services including
conciliation, mediation in certain cases and arbitration.
According to CIPD, employers whose HR specialists are
trained in mediation techniques have 50% fewer Employment Tribunal
claims than those who do not offer such training. This may
be more an indication that well trained staff will inevitably get
better results than those who act in a rather more haphazard way in
terms of dispute resolution. However, it does underline the
benefits of having a developed mediation strategy.
Given the economics one must ask why it is employers have been
so shy of using mediation in the past. Creating a mediation forum
can be used as an opportunity to resolve disputes before someone is
forced to go down either the disciplinary or grievance route.
One of the greatest costs for employers is losing good staff.
Many good staff leave because they consider that their grievance
has not been satisfactorily resolved, because they do not want to
be seen as a trouble-maker by starting a formal grievance
procedure or because they believe their employer will not do
anything to resolve the dispute.
Bringing in somebody entirely neutral to act as an intelligent
guide to the negotiation process can be an effective means of
resolving dispute. An employer who uses mediation as one of its
tools puts itself in a stronger position with its employees both to
identify unreasonable practices and to provide a non-contentious
means of resolving disputes.
Employers who fail to make use of the full range of dispute
resolution techniques can pay a high price for their lack of
investment. This is the time to embrace the outsider.
Contact: jane.moorman@pinsentmasons.com
