Taking a dispute to tribunal is costly, time consuming and distracting, which is why more and more employers are actively embracing mediation as their preferred way to resolve disputes with employees. The employment tribunal rules actively encourage parties to use alternative dispute resolution (ADR) routes, such as mediation, wherever possible and where appropriate.
Mediation is a voluntary and confidential process whereby an independent third party works with the parties involved to try and reach an agreed resolution, which can be as creative as the parties’ imagination allows.
Mediation is especially effective when both parties want to take a constructive and cost-effective approach; in other words, they must both want to participate. The benefits of mediation for employers are substantial:
Costs are, generally, considerably lower than pursuing a tribunal claim. For instance, running a day’s mediation costs a fraction of what is required to defend a tribunal claimThe process also can be considerably faster – there is no tribunal backlog to negotiate and, depending on the matter being mediated, the dispute can be resolved within a short time frameBecause mediation is a collaborative process, an experienced mediator can often get to the nub of problem very quickly and agree a more flexible remedy: a financial settlement is not always the only way to reach agreementMediation is confidentialIt saves a considerable amount of management time. According a CIPD survey, employers spend, on average, six days dealing with an individual disciplinary case, and five days with a grievanceIt has a good success rate.Ground rules
Here are some of the standard requirements for parties entering a mediation. The parties need to have authority to be able to settle the dispute; in addition, they will need to agree to share the costs and act in good faith. The mediation can be terminated at any time by either party or the mediator, without giving reasons. Any agreement reached shall be binding once signed by both parties and enforceable by the courts.
In addition, parties must recognise that the mediator is impartial and independent, and so will not offer legal advice or a resolution. Mediators themselves are professionally-trained individuals, many of whom – like the author – are lawyers. The mediator needs to undertake and pass a mediation course by a recognised provider. There are a number of providers recognised by the Civil Mediation Council, such as the Society of Mediators or CEDR. He/she must have indemnity insurance as well.
Mediators do not offer an opinion on the dispute; they are there to facilitate an agreement. They are able to put a positive interpretation on proceedings to help both parties reach an agreement that works for both sides. This is a more constructive approach than adversarial court proceedings, which seek to find for one side only.
An important aspect is that the mediator does not advise either party within the mediation. The mediator is impartial, and both parties are encouraged to speak openly: the mediator will only disclose information to the other side if agreed. The mediator will also stress the importance of both parties taking legal advice to complement the mediation session that takes place, which is why most parties are accompanied by their legal advisers. This ensures that all parties understand the legal consequences of the agreement they reach.
Here is how the process works. It is recommended that each party is legally represented throughout the mediation. Both parties are invited to provide a short summary of their case for the other side and for the mediator. They need to agree a suitable venue (which must have at least three rooms) and the mediator will circulate a mediation agreement, setting out the terms of the mediation, including the requirement of confidentiality. At the mediation itself, the mediator will set out the rules, after which each party will retire to their respective rooms and the mediator will move between them, questioning their cases and drawing out the salient facts.
Each party should come to mediation prepared with a position statement, evidence outlining their case and offering a solution that best work for them, looking into the future. They should also consider a compromise position. As the aim is to reach a resolution, a compromise in inevitable. The trick is to find a resolution that works for both parties.
Unlike some grievance and disciplinary policies and certainly tribunal proceedings, the mediation process is very flexible, largely informal and can often be convened at short notice. Mediation can be used at any stage of an employment relationship or even after it has been terminated. For instance, it could be instigated after a grievance has been raised following a workplace conflict, before or after an employment tribunal claim has been issued.
Even if the process does not lead to a resolution, it may provide other benefits. For example, in the author’s experience, just such a situation did, in the end, enable the parties to understand each other’s position for the first time, and how far they will be willing to go in settlement. In that case, after the mediation the directors of the respective companies met and signed a settlement agreement between themselves. The solution reached had nothing to do with the disputed sums discussed in the mediation, but it did have to do with an outside-of-the-box solution discussed at the mediation. So mediation can also be a very useful tool in learning each other’s positions and discussing solutions.
BOX: Another perspective
According to charity the Civil Mediation Council, mediation provides the potential to:
Help parties involved in conflict to hold open conversations that would normally be too difficult to have Help parties to understand and empathise with each other’s emotions and situationsExplore all parties’ issues and concerns, and use joint problem-solving to find a solution that each side feels is fairEncourage communication and establish workable relationshipsHelp participants develop the skills to resolve workplace difficulties for themselves in future.It adds that different types of workplace disputes can be resolved with mediation, including conflict arising from poor communication, unclear role boundaries, different working styles and issues relating to harassment or bullying. Most disputes can be resolved, provided that all parties are prepared to work on the issues, and they have the authority to settle the situation.