In the past employers have been slow to consider referring employment disputes to mediation. Matthew Wort looks at why things are set to change.
From April 6, a new ACAS code of conduct replaced the statutory grievance and disciplinary procedures, changing the landscape for handling employment disputes.
The focus is now on developing less formal ways of dispute resolution in an employment context, preferably before the formal disciplinary or grievance procedure is instigated.
According to an international business psychology study, the average UK employee spends more than two hours a week dealing with conflict, meaning that more than 370 million working days were lost in 2008, at a cost of £24 billion to the UK economy.
Research conducted by the Chartered Institute of Personnel and Development (CIPD) has shown that by the time formal disciplinary and grievance procedures are put into place, “confrontational stances on both sides have developed that are very hard to change”. In order to avoid this situation, the CIPD recommends that managers at all levels are given the skills and knowledge to manage and prevent workplace conflict in a wide variety of situations.
The ACAS Code now highlights that employers should consider using an independent third party to help resolve disputes.
Mediation uses an impartial, independent adviser to listen to both accounts of the dispute, usually both in round-table discussions and individually, in order to help the parties reach a mutually agreeable resolution. ACAS recommends that mediation is used as early as possible where a workplace dispute is identified, in order to try to avoid the instigation of the formal disciplinary and grievance procedures unless absolutely necessary.
Mediation can be conducted “in-house”, by using managers trained in mediation who are not involved directly in the dispute. However, in some instances, it may be appropriate to contact an external facilitator, in order that the mediation is seen as being impartial from the organisation.
There are many benefits from an effective use of mediation and mediation skills in the workplace.
Using mediation as a tool in the workplace can avoid disputes arising in the first place as managers trained with mediation skills will avoid employees’ concerns from escalating. Where more serious disputes do arise mediation can lead to disputes being resolved, avoiding Employment Tribunal claims and saving considerable cost and management time.
Early resolution of disputes will assist in maintaining staff morale. Having staff trained in mediation skills and encouraging to use them will create an environment where concerns are aired and resolved at an early stage, to the benefit of all concerned.
The formal mediation process is conducted on a “without prejudice” basis, meaning that the content of discussions, including any discussion of financial settlement of the dispute, would not be able to be used as evidence if the case went to the Employment Tribunal. This encourages openness and cooperation from parties, which may not have been achieved had the formal grievance and disciplinary procedures been instigated immediately.
Before considering mediation, employees should always be encouraged to talk problems through with those concerned. However, mediation is an effective tool in resolving disputes where discussions have previously proved unsuccessful.
There are instances when it may not be appropriate to use mediation. One instance is where a decision is needed about “right and wrong”, for example where there is possible criminal activity. In such a case, it may be more appropriate for the employer to use their formal disciplinary procedure. Similarly, employers should use their formal grievance procedure where an employee has complained of discrimination or harassment which needs to be investigated.
In order to ensure that mediation is used to its potential in the workplace, employers should consider building it into their disciplinary and grievance procedures.
It is also vital to ensure that those conducting mediation have training in facilitating such discussions.
In so doing, employers would be able to take advantage of the benefits of mediation, and help to ensure that disputes, although they may still arise, are dealt with as effectively and efficiently as possible.