The rise and rise of mediation – resolution not litigation

There are a number of reasons, many are pragmatic and relate to costs – and indeed the impact of the recession on working practices. There has arguably been a change in the way in which workplace disputes are handled, with employers, workers and their representatives being more open to using a problem-solving approach in order to work towards a mutually agreeable resolution, rather than confrontation through an adversarial process – which can end in the arena of an employment tribunal.

Simon Robinson, employment law barrister and accredited mediator at myBarrister.co.uk gives us his top tips to avoid litigation.

How to stay out of the boxing ring
Mediation can be a way of addressing a situation in a swift and focused way using a independent, trained third party to facilitate a discussion. Whilst an employment tribunal may highlight concerns or poor practice, it’s up to the employer to decide whether or not to do anything about these. Mediation enables the employer and worker to drill down to the underlying issues.

Articles and guidance on dealing with disciplinary issues often focus on the process, and how an employee can protect himself or herself. To an extent this is ok, but isn’t it worth using mediation or other approaches to deal with the issue earlier – avoiding the stress and expense of a disciplinary that may lead to a tribunal? If these don’t work, the disciplinary route is still open.

Costs rack up
Defending a one-day employment tribunal case claim can cost an employer anything from £3,800 – £8,500 and more, depending on your circumstance.

In addition to legal costs, there’s also the cost in staff time, providing witness statements, meeting with HR and lawyers. And, time spent in a tribunal is time away from productive work. CIPD research in 2011 indicated that a grievance can take an average of seven days of management and HR time, and the cost of conflict includes time away from work due to stress.

A one day mediation could cost as little as £1,000 for a mediator, and can take place at your business premises. Mediation is confidential, and so even if you don’t get an agreement on the day, nothing that happens in mediation can be used in any subsequent tribunal.

The mediation argument
The Government’s Employment Regulation Research Series 123 in March 2013 indicated that small businesses are less likely than larger employers to have performance management processes in place. The combination of lack of knowledge and ineffective management processes can contribute to disputes escalating into a grievance or a legal case. An experienced mediator can support both parties to reconsider the situation and find a better way to work together.

Mediation provides an opportunity for the employer and employee to look at the issues together with support from a qualified and neutral third party.

A good mediator brings a fresh perspective, relevant experience and skills to help parties to challenge their positions and reality test solutions. Mediation can find a good fit with conflict management and coaching approaches, where the mediator addresses the immediate issues and coaching may form part of ongoing resolution and development.

Mediation can help employers to maintain staff morale, for example during reorganisation or change management. For example, if an employer turns down a flexible working request, providing mediation may enable the manager and employee to work out another option and potentially avoid a grievance or claim.

Businesss rely on their staff to succeed, securing good staff relations can build a more engaged workforce.

Simon Robinson, employment law barrister and accredited mediator at myBarrister.co.uk – the direct access barrister service

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