27 Apr 2017
Employment Mediation - a new landscape in a decade
By Fiona Colquhoun and Sheila Bates [This article first appeared in The Report Wesminster, Spring 2017]
This year is the 10th anniversary of the publication of the Gibbons review commissioned by the UK Government. The statutory dispute resolution processes in 2004 were considered ineffective and there was considerable interest in exploring a viable alternative to Employment Tribunals for employees and employers.
Michael Gibbons felt that very many issues could be resolved at their source within the workplace and advocated the use of mediation at the earliest possible stage of a dispute. Ten years on, we look at developments in the sector.
Employment and workplace mediation has been a growth area in the last 10 years, in both dispute resolution services skills training and professional development.
Mediation in employment cases has been proven to deescalate conflict and reduce unnecessary costs, when used with or as an alternative to tribunals, especially where there are or have been formal procedure such as disciplinary and grievance.
As a result of this growth, both ACAS and independent mediation providers have conducted thousands of successful employment mediations – the difference between the two being that many users of mediation wish to have more say around the process and bespoke it to fit the needs of the case. Some providers now also offer specific workplace mediation programmes and some mediators have chosen to specialise in employment.
In this context it can be said that in the last 10 years:
- Cases have become more diverse and varied, including protracted claims of bullying and multi discrimination claims; grievances; reintegration of employees after sickness or extended leave; unfair dismissal; and whistle blowing. On the interpersonal conflict spectrum there has been a steady emergence of cases where one or both parties have mental health conditions - more workplace and employment cases than ever before are routed in mental health issues. Whilst mediation is a hard and robust process, it also needs to deal with some of the softer but sensitive people issues, therefore requiring a great deal of skill.
- Lawyers have become more open about engaging in mediation. Nowadays they are more willing to consider when mediation works in the best interests of both defendants and claimants. Lawyers are trained and better equipped to advocate for their clients.
- Mediation adaptability and flexibility has developed considerably providing more tools and interventions for clients. In its simplest form mediation is the facilitation of a difficult conversation between two people. At its most complex, mediation may be tough bargaining and negotiating between several people with different interests, values and entrenched positions. There may be Counsel and employment lawyer instructed for both parties and in some cases numbers are large. Large group workplace mediations and many attendees involved in employment mediations are challenging to the mediators, but also are proof of the process’ adaptability. Mediations may be as short as half a day or straddle several days over weeks.
- A number of organisations and their managers have become more aware of mediation and how it can work. Organisations have incorporated mediation into their employment policies, contracts of employment and to their existing policies including grievance procedures.
- The objections to employers paying costs and claimants feeling stifled by delaying access to a tribunal have diminished as mediation has become more effective and mediators find it easier to reassure parties to engage them in the process.
- Organisations have seen that mediation can work, save time, costs and resources counteracting large numbers of grievances. Trades Unions have generally been supportive of mediation initiatives as have professional organisations and associations.
- Success rate in employment and workplace cases are high (CEDR’s own is over 90%). This is partly as mediation remains a voluntary process and claimants are not forced into this situation. Employment Tribunal processes are more frequently stayed to allow for mediation, and judicial mediation has widened the spectrum of dispute resolution offerings. Late mediation, even at Employment Tribunal stage, has avoided long hearings by helping parties to reach settlements.
Many Employers now use mediation when they consider the independence of a mediator may be the best way to resolve an internal conflict or difference. There are now sizeable organisations which have set up ‘mediation schemes’ using both their own and external mediators, and are committed to making mediation a progressive part of their culture.
In conclusion, the last 10 years have brought considerable developments to employment and workplace mediation with a much wider spectrum of processes and resolutions than ever before. Sometimes looking though our own and our colleagues’ practices, we marvel at the range of experiences mediation offers and expect the next 10 years to embrace further changes in as meaningful and as effective a way.