Following the introduction of the new flexible working regime last month, nothing new is expected on the employment law front for some while. We are taking the opportunity presented by this brief ceasefire to re-run and update a series of ten pieces on Mediation in the Workplace which first appeared in the early days of this blog in late 2011 and the first months of 2012, starting with my introductory piece and Part One below.
I hope that you enjoy these posts and find them a useful insight into what is a much under-rated tool in any HR department’s dispute resolution armoury. Relative to full-blown litigation or even just an ordinarily tortured internal grievance, mediation can offer a more than decent chance of a resolution acceptable to the parties which is quick, economical and discreet. That is true whether you are well down the path of a Tribunal claim or (perhaps more positively) just in the first twitchings of some internal spat between valued members of your staff. So often such disputes are based on crossed wires, inadvertence or moments of stress or fatigue. While any lawyer worth his salt could swiftly turn this kernel into entrenched positions, terminal acrimony and legal bills, why would you?
The ability to use mediation principles is a handy life-skill generally, in fact, though I can exclusively reveal that its non-confrontational, pragmatic and reasoned approach is not remotely effective (indeed, is actively provocative) when applied to teenage children.
Mediation in the workplace – the insider’s guide
Many years ago I was encouraged to submit a high-profile equal pay claim to mediation. We had already won in the Employment Tribunal but an appeal was threatened and there were going to be extended arguments about quantum even at best. To say that I was sceptical would be an understatement – we had after all spent the thick end of two years getting to that point and were over £1million apart from the employer. And yet after just eight hours in mediation it was all done, settled in less than a day.
Shortly before the time ran out, but while we were still £100,000s apart, the mediator took both parties away from their lawyers into a room together. When they came out it was all agreed. And for years afterwards I wondered – what did he do to them in there? Did it hurt? And by what sort of dark arts had he taken a seemingly unbridgeable gap two years in the making and, in less than a day, bridged it?
Since that day mediation in the employment field has become more common, driven, in part by the increasing cost and complexity of legal proceedings and in part by mediations inherent advantages of speed, economy (as a relative term) and discretion. The Employment Tribunals have begun to operate their own mediation scheme in certain cases and the desirability of mediation has now found its way into the Foreword of the ACAS Code of Practice on disciplinary and grievance procedures. However, it is not as widespread as its potential merits should suggest, perhaps because few employers are yet willing to trust a process which they do not fully understand.
So starting next week this blog begins a series of insights into the mediator’s art, what to expect if you go to mediation on an employment matter and how to make the best out of it. We will let you know how to tell your BATNA from your WATNA, and why going into the Insult Zone is less fun than it sounds.
By kind consent of CEDR, our writer for this series will be Caroline Sheridan, senior mediator for the Centre for Effective Dispute Resolution and one of the very few non-lawyer mediators featured in both the Chambers and Legal 500 Directories.
Employment Mediations – an Insider’s Guide, Part 1
The definition of mediation most commonly used by the Centre for Effective Dispute Resolution CEDR : Effective Dispute Resolution, Mediation, Conflict Management and Training (CEDR) is “a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”.
Over the next ten weeks or so I will look at what that means in practice and hopefully shed some light on the mediation process as it may be applied to employment disputes.
Before getting into the nuts and bolts of a mediation, some basic rules. As this series progresses you will see that these basic rules are more or less sacrosanct, and that they inform almost the whole of the procedure from start to finish.
First, mediation is generally voluntary. Some contracts in the commercial world make mediation a part of the formal dispute resolution mechanism, but this is much less common inUKemployment contracts. This means that a party can refuse to participate or can walk out of a mediation at any time, usually quite without sanction in costs or otherwise. However, though mediations do sometimes contain some posturing and threats to walk, it actually happens very much less than you would think.
Second, confidentiality. There are two layers of confidentiality required to make a mediation work. Each party must be confident first that what he says to the mediator about his position will stay secret unless and until he agrees otherwise. Without that safeguard he may feel constrained in voicing ideas or opinions which might help move the matter towards a settlement. Nothing should “leave the room” until the mediator has that party’s clear consent to take it to the other side. In addition, the parties must also jointly feel that they can make suggestions or offers, or even just “vent” at the outset, without this being held against them later should the mediation fail. The intention is to provide a “safe environment”, and this will be potentially fatally threatened by any suggestion that the confidentiality “bubble” around the whole process is not robust.
Third, neutrality. The moment the mediator is perceived (whether correctly or not) to favour one party over the other, the mediation is effectively doomed. This is sometimes hard to avoid, especially where one party (or their representative) is behaving unreasonably in the terms sought, or, in the heat of the moment, rudely or aggressively. The maintenance of strict impartiality, both in fact and in perception, is key. That means the mediator consciously behaving equally to both parties when in joint session, and maintaining an almost infinite patience in one’s dealings with each separately, despite the sometimes almost irresistible temptation to the contrary!
Last, ownership of the solution by the parties. This is what gives the mediation process its power. When I mediate I am not making a ruling on the case, nor finding a solution in my own head and then pushing the parties towards it. The outcome is theirs to agree. Even though I might often think that some other outcome might have been “fairer”, that is not for me to decide and I must not express that view at any stage in the process. While I would encourage him to look at all the options, it is the prerogative of each party to make a “bad” bargain if he is happy with it, and it is not within the mediator’s remit (for fear not least of prejudicing neutrality) to steer him away from it. After all, who is to say it is bad?