Make the most of mediation in disputes

Employers are missing out on the benefits of bringing mediation to bear in the workplace, according to Eilidh Wiseman, head of employment law, Dundas & Wilson.

Key points

  • Acas is in line for extra funding of up to £37m to ramp up its provision of conciliation services in disputes.
  • An Acas mediation helpline service should be available in April 2009.
  • Around two-thirds of HR professionals have no experience of mediation to settle workplace disputes.
  • Of those who have, 60% see the flexibility of mediation as its strongest point.

Pressure is no stranger to the modern workplace, but its presence is never felt so acutely than during a dispute - especially if the ultimate result is a conflict which ends up in an employment tribunal.

Many, including myself, have argued that early intervention is key in settling disputes - bringing things to an amicable conclusion before they get out of hand.

A helping hand

Recently, the government announced that the Advisory, Conciliation and Arbitration Service (Acas) will receive up to £37m of additional funding over the next three years to enable it to step into workplace disputes at an early stage. The aim is to reduce the number of cases being heard by employment tribunals - currently running at 120,000 plus per year.

An extended helpline service should be rolled out in April 2009, when it is anticipated that the Employment Bill, which will repeal the statutory discipline and dismissal and grievance procedures, will take effect. In my view, this is a good thing. A move away from the much maligned statutory procedures was clearly necessary, and any assistance to enable parties to resolve disputes before entering the formal employment tribunal process must be welcomed.

It is also re-assuring that Acas will provide assistance in finding alternative ways of resolving disputes, as it is the government’s intention to liaise with mediation providers to explore more effective promotion of early dispute resolution and its benefits.

The trend in modern workplaces should be towards flexibility – whether related to working patterns, practices or business thinking. Given this, it seems to me to be a clear anomaly that the flexibility offered by mediation is so under-used. A survey of 130 HR professionals, conducted by my firm at the CIPD Conference in Perth in March, found:

  • around two-thirds of employers have no experience of using mediation
  • those that have used mediation value its flexibility above all else.

Flexible friend

The beauty of mediation lies in its flexibility. Its strength is based on the various outcomes it allows, rather than being restricted to a financial resolution. These can range from an apology, which is sometimes all that is necessary, to a review of someone’s role, or redeployment elsewhere in the business.

I have no doubt that there are cases where an employment tribunal is necessary and unavoidable. However, many could be avoided if mediation is used at an early stage, rather than parties retreating to their individual, opposing camps.

It is a less confrontational process that allows both parties to discuss the problem, with guidance from an independent ‘referee’. By encouraging them to communicate and consider alternative views and realistic outcomes, parties are able to move towards a resolution which takes into account the fact that, very often, they must continue to work together on a daily basis.

Happy endings

In my experience, mediation invariably results in an outcome that is acceptable to all. The flexibility of the procedure allows parties to address the crux of the issue openly, and agree a resolution which is not purely monetary. In doing so, the potential costs and stress for each party are reduced and the proceedings and outcome remain confidential.

I strongly believe that mediation is under-utilised and its benefits under-estimated. I very much hope that the proposals announced by the government will encourage more employers and employees to consider it as a first port of call in the event of a disagreement.

Eilidh Wiseman, head of employment law, Dundas & Wilson.