For those involved in HR over a number of years, it’s easy to conclude that ER has become more formal, the risk and cost of litigation has grown and the role of employment law in HR work has increased. Any number of large employers now have teams of staff to deal with employment disputes. Some of these developments have been valuable, giving weight to employee rights and due process. I did some research on this issue recently, which involved looking at the case load of a firm of employment lawyers over a 24 month period. I wasn’t surprised to find that grievances are taking longer and longer to conclude, a number of employers are not even prepared to have a discussion about a difficult issue without the use of such procedures, and most grievances typically do not find in favour of the person taking the grievance.
HR practitioners have stopped having difficult discussions, in part because we’re frightened to do so, choosing to use grievance procedures instead; and formal means of resolving disputes rarely resolve disputes. If there were problems at various stages of the production process in a car manufacturing plant, which would eventually lead to cars coming off the road, the production problems would be quickly resolved. In employment, the problems are looked upon as part of an expensive dance, typically leading to time consuming procedures, litigation or an expensive settlement. Very rarely are attempts made to resolve matters constructively and elegantly. The increasing use of mediation may change this.
What is mediation?
CEDR use the following definition: “Mediation 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.”
The addition of mediation to tribunal claims
Mediation has been used for some time in employment disputes in the UK and increasingly elsewhere, including the Dubai International Financial Centre and Saudi Arabia. From April 2014, anyone in the UK considering an employment tribunal claim will need to contact Acas. This service is called Early Conciliation and will attempt to resolve a dispute outside the tribunal system and before any proceedings are launched. The process and its benefits are similar to mediation in a number of respects. It’s unclear for the moment what impact this will have on Tribunals and exactly how Early Conciliation will work in the early stages of implementation, given the significant increase in workload this will place upon Acas. But it’s another step in the UK to resolving disputes prior to litigation and will inevitably increase the use of mediation.
How can you use mediation in your organisation?
The traditional role of HR practitioners as an honest broker between employees and management has changed to one of being an advocate for management and, on occasion, an enforcer. The skills and practice of mediation reflect the more traditional approach – listening actively to those involved, working to find a solution acceptable to all and exercising a high degree of empathy. Currently, mediation is used when litigation has started, external legal advisers are in place and when at least one of the parties involved is seeking to settle the claim in advance of a tribunal. In my experience it’s usually legal advisers who recommend considering mediation and yet there is a significant role for practitioners to play in recommending mediation and then being involved in the process. The advantages of such involvement are many, including confidentiality and discretion, both of which are typically lost during later stages of litigation. With active use of mediation, practitioners will protect the public image of their company. This may also benefit the claimant if the claimant avoids having their name mentioned in tribunal proceedings which then appears in o-line searches by recruiters and potential employers. Even if mediation is not successful on the day, discussions often lead to a resolution at a later date, again without further litigation. The success rate for mediation is claimed to be as high as 80-90%. Practitioners can be involved in these discussions and can help facilitate the final agreement.
It’s good to talk
Mediation deals more effectively with the emotional aspects of a dispute, providing a space where emotions can be expressed and heard. It can identify solutions which are not readily available during the later stages of a dispute or subsequent litigation, like a simple apology. I was involved as a party to a mediation where it was evident the claimant wanted an apology and this was an essential part of the final agreement. It was, of course, a shame the apology had not been offered much earlier. In the midst of a dispute, it’s easy to ignore the emotional aspects on both sides, but practitioners should recognise and deal with this. If they don’t, it’s unlikely to happen anywhere else.
Finally, one of my objectives as a practitioner was to ensure very few employment disputes reached the leadership team. Litigation is not only time-consuming and costly, it’s also distracting and worrying over many months for all involved. The cost to the individual is clear, but I have witnessed any number of leadership teams in such disputes and it is equally costly for them in different ways. The more HR practitioners can do to ensure such disputes are resolved on a timely basis, the better it will be for everybody. The late Bob Hoskins was famous for various roles – a London gangster in The Long Good Friday (watching helplessly as his empire crumbles around him), a private detective in Who Framed Roger Rabbit?, and his appearance in BT adverts where he told us: “it’s good to talk”. His advice is as relevant to employment disputes as it is to making telephone calls.