MediationI spoke at a commercial webinar yesterday concerning the opportunities for and obstacles to mediation as a solution to workplace disputes in the pandemic.  Other speakers represented employers and the mediation community.  Here are some takeaways:

  • As progress to counter the virus appears to gather pace, many employers have noticed an increase in the number of workplace grievances, often of an objectively relatively petty nature.  The common view is that this reflects the time which people have spent at home noodling away over what may at their root be only minor injustices.  Without the moderating effect of interaction with others to knock the corners off those perceptions or to address them at source, they can develop an emotional head of steam quite disproportionate to the actual importance of the issue.
  • A material proportion of those grievances relate to issues of ordinary fairness and equity between colleagues, concerns without any necessary legal significance.  This may be a response to their feeling of powerlessness in the face of the hard collective decisions which their employer has had to make over the last 8 months, often without consultation, at little or no notice and with seemingly scanty regard to them as individuals.
  • Though starting a grievance might seem a good way of regaining some internal profile with one’s employer and of recovering some element of control of one’s own destiny, that is not necessarily true.  In fact bringing a formal grievance sets a legal ball rolling that you might not be able to stop later, and which may have consequences you neither expected nor wanted.  The more trivial and less legally significant it is, the greater the chance of that happening.
  • If there is to be a wave of relatively minor grievances as we emerge from the pandemic and lockdown, it may be appropriate to offer your line management a refresh in handling them.  Key points could include:
    • Try not to let a significant volume of grievances translate into delay in handling them.  Delay without good reason is a breach of the ACAS Code and will only add to the employee’s sense of injustice and isolation. If there is a delay, at least keep the employee informed.
    • Don’t let the emotional sound and fury of the grievance obscure what it is actually about.  If in doubt, press early for specifics.  What precise words or acts or omissions are relied upon?  Allegations of “bullying”, “harassment”, “treating me differently”, “unfairness” mean nothing without those details. Years ago, we asked a client’s employee what he meant by bullying by his manager and got back only that “she leant across the table, her eyes flashing” — managers have rights too and they include being given concrete details enough of what is alleged that they can admit, deny or explain as appropriate. In similar vein, focus on those parts of the complaint which you can do something about – those which are recent, relevant and, above all, resolvable.  Unless specifically required otherwise by your grievance policy, the main test for an employer’s conduct of a grievance is that it should have been within the range of reasonable responses to what is complained about.  That range is quite wide and could easily encompass not dealing with matters which are old, irrelevant or now beyond remedy.
    • Ask the employee right at the beginning – what do you want?  You are in no sense bound by the answer but it may be much less difficult or contentious than you were expecting, such that you could go straight there to some extent and so short-circuit the formal process. It also helps both sides to focus on what is realistic.
    • Push mediation hard.  The high-emotion, low-objective-importance nature of some of these anticipated grievances makes mediation an ideal method of defusing tensions which will be merely ratcheted up by the artillery duel of a formal contested grievance.  It will provide the “someone to talk to” valve which the pandemic may otherwise have taken away. It is much quicker, confidential and prejudices no-one’s rights if it does not work.
  • And with that in mind, take a moment to polish up your grievance policy.  Does it manage expectations in terms of its focus on specifics and complaints which are recent, relevant and resolvable?  Does it encourage complainants to make clear at the outset what they see as their preferred outcome?  Most importantly, does it say upfront that the employer will seek to deal with appropriate matters via a mediation, and that the employee’s participation is expected?

If you would like to understand more about the use of the mediation process in workplace conflicts, either for your own purposes or to help explain it to a hesitant employee, have a look at our 10-part Insider’s Guide series archive: