Taking a dispute to tribunal is costly, time consuming and distracting, which is why more and more employers are actively embracing mediation as their preferred way to resolve disputes with employees. Under the Employment Tribunal Rules, tribunals are actively required to encourage parties to use alternative dispute resolution (ADR) routes, such as mediation, wherever possible and where appropriate. Mediation is a voluntary, confidential process whereby an independent third party works with the parties involved to try and reach an agreed resolution that can be as creative as the parties’ imagination allows.
Who can mediate?
Mediators themselves are independent, professionally trained individuals, many of whom – like me - are lawyers. Mediators do not offer an opinion on the dispute; they are there to facilitate an agreement. They are able to put a positive interpretation on proceedings to help both parties reach an agreement that works for both sides. This is a more constructive approach than adversarial court proceedings which seek to find for one side only.
Mediation is especially effective when both parties want to take a constructive and cost-effective approach, in other words, they must both want to participate. The benefits of mediation for employers are substantial:
- Costs are, generally, considerably lower than pursuing a tribunal claim. For instance, we are able to run a day’s mediation at a fraction of the cost of defending a tribunal claim.
- The process can be considerably faster – there is no tribunal backlog to negotiate and, depending on the matter being mediated, we can resolve the dispute within a short timeframe.
- Because mediation is a collaborative process, an experienced mediator can often get to the nub of problem very quickly and agree a more flexible remedy: a financial settlement is not always the only way to reach agreement.
- Mediation is confidential.
- It saves a considerable amount of management time (according a CIPD survey, employers spend, on average, six days dealing with an individual disciplinary case, and five days with a grievance); and
- It has a good success rate.
Impartial, confidential proceedings
An important aspect is that mediator does not advise either party within the mediation. The mediator is impartial and both parties are encouraged to speak openly: the mediator will only disclose information to the other side if agreed. The mediator will also stress the importance of both parties taking legal advice to complement the mediation that takes place which is why most parties are accompanied by their legal advisers. This ensures that all parties understand the legal consequences of the agreement they reach.
How does it work?
It is recommended that each party is legally represented throughout the mediation. Both parties are invited to provide a short summary of their case for the other side and for the mediator. They need to agree a suitable venue (which must have at least three rooms) and the mediator will circulate a mediation agreement, setting out the terms of the mediation including that of confidentiality. At the mediation itself, the mediator will set out the ground rules, after which each party will retire to their respective rooms and the mediator will move between them, questioning their cases and drawing out the salient facts.
How we can help
Having trained as a specialist employment mediator, I can help you to resolve all types of employment-related disputes and grievances. Unlike some grievance and disciplinary policies and certainly tribunal proceedings, the mediation process is very flexible, largely informal and can often be convened at short notice. Mediation can be used at any stage of an employment relationship or even after it has been terminated. For instance, it could be instigated after a grievance has been raised, following a workplace conflict, before or after an employment tribunal claim has been issued.
Mediation is being actively encouraged as a way of resolving employment disputes. It is cost-effective and should produce a better outcome if both parties fully commit to the process. If you would like to find out more about mediation and whether it is the right route for you, please give me a call and I would be happy to talk to you about how it can help your organisation save both time and money.