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Promote the use of mediation in workplace disputes.

Comment 15th March 2013

According to data from BIS, CIPD and Acas, the cost of unresolved conflicts to UK companies is counted in terms of millions of pounds – this figure is increasing daily. Recent reforms to the dispute resolution regulations and the publication of the Gibbons Review (2007) promised a simplified approach to dispute resolution with greater emphasis on ADR. However, the promised reforms have not been delivered and employment relations in the UK is in the worst state that it has perhaps ever been. The recent spate of high profile disputes in BA, BAA and Royal, amongst others, is just the tip of a very sizeable iceberg.

The Dispute Resolution Regulations (2004) let the genie out of the bottle and, whatever steps have since been taken to repeal the regulations, it is now impossible to get the genie back in.

The DRR (2004) paradoxically encouraged grievances (many of them vexatious) from disgruntled employees.

The result?

Many companies are now in the grip of a grievance epidemic. Some managers are spending over a third of their working week managing conflicts and disputes in the workplace. Applications to tribunals are on the increase and the costs and the time spent by all parties is escalating. It is an extreme and unprecedented state of affairs.

Since April 2009, Acas have provided pre-claims conciliation (PCC) but this is no where near enough. PCC represents extremely bad value for money. PCC is a sticking plaster and it simply keeps cases out of court. PCC is not about restoring relationships – at worst, it removes parties’ rights to a meaningful and just resolution to their dispute.

According to Acas’ own data, of the 10,000 PCC,s carried out in the last financial year, 80% of the relationships had already broken down to the extent that the employment contract had been terminated. PCC offers little hope of a remedy – it is too little, too late.

Mediation, however, nips issues in the bud and restores professional, harmonious and constructive working relationships. Mediation is effective at an early stage dispute or in polarised, intransigent, and destructive workplace disputes.

Mediation secures a resolution in over 90% of cases and research is being carried out by the Civil Mediation Council (CMC) and BIS into the sustainability and effectiveness of mediation. I am leading a research team and we are working collaboratively with Swansea University to undertake long term research into the effectiveness and sustainability of workplace and employment mediation.

UK companies however are still unclear about mediation-, what it is; what it does; and what it can achieve.

To help reduce the costs of conflict to UK companies, to reduce the stress and the hassle associated with resolving disputes and to promote better employment relations at a time of major change, I propose that the new coalition Government undertakes the following:

  • Support the current research being undertaken by the CMC into the effectiveness of workplace mediation.
  • Promote the inclusion of mediation into company grievance and disciplinary policies.
  • Revisit the Gibbons review and consider mechanisms for incentivising the use of mediation.
  • Promote the wider use of mediation within contracts of employment.
  • Create an independent workplace and employment mediation helpline similar to the National Mediation Helpline. This should independent of Acas.
  • Work with the CMC to firm that organisation up as a regulatory authority to promote standards in mediation.
  • Train advisory bodies such as the Citizens Advice Bureau, Business Link and others in the fundamentals of mediation and encourage these bodies to promote mediation more widely.

Other areas that I feel are worthy of consideration include:

  • Promote the use of mediation through Government procurement procedures.
  • Promote the use of mediation as a means of resolving complaints against the police and other statutory agencies eg NHS complaints. For instance, I am setting up a mediation scheme for the Metropolitan Police Service (MPS) to help resolve complaints at a local level. It is estimated that 40% of complaints against the MPS could be resolved through mediation thereby reducing time and costs.

I would be very happy to work with the coalition Government to develop this further and I would be interested to find out more about how and where ADR, and in particular mediation, fits into your plans.

Why does this matter?

Mediation is still a much underused method of dispute resolution. However, attitudes to mediation are changing and ,in terms of saving money, reducing stress and securing sustainable outcomes, mediation is proving to be far more effective than any other form of dispute resolution available.

Through mediation, the parties feel valued, they are able to be heard, they can receive explanations and apologies and they are empowered to develop a resolution that meets their needs. Not the needs of a third party who has little interest in them or their long term needs and goals.

Mediation is not about giving up rights, it is about finding new and innovative ways of working and relating to each other. Whilst litigation does have a role to play, the reliance on litigation is having a dreadful impact across the board.

The role of the employment tribunal (ET) should be substantially reduced as it rarely delivers the results that either party needs or deserves. We need a shift of culture and a shift of attitude. At least to a point where companies are willing to consider mediation and to give it a go – after all, what do parties in a dispute have to lose? Very little but they have everything to gain

My idea is important because mediation is still in its infancy on the UK yet we are developing a highly effective model here that could be the envy of the world. However, this idea needs Government support to help companies realise the potential and the opportunities that mediation has to offer.

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