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Callum Murray

Murray & Duncan

Founder

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Mediating away from a tribunal and avoiding the worst-case scenario

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Following recent regulatory change which has seen the introduction of claimant fees now payable for cases being taken to tribunal, an assumption might be made that the number of claims ending in a formal hearing will reduce as a result. However, the reality may be more complex than simple financial decisions.

Involvement in a formal tribunal process may ultimately stand as means to providing finality to an employee or employer-based dispute whether contractual, rights or discriminatory-based dispute.

In recent years, Acas’ (Advisory Conciliation and Arbitration Service) involvement with their conciliatory approach has done much to provide alternative and non-adversarial means of resolution.

More recently, The Enterprise and Regulatory Reform Act 2013 came into force October 2013. This legislation allows provision for Acas notification and appointment to assist at an early stage. Prior to lodging a claim to begin an employment tribunal process the claimant is required to contact Acas which will then offer early conciliation to try and resolve the situation out with the tribunal system. The tribunal process will however begin whilst conciliation efforts are made concurrently.

A clear understanding of contractual obligation combined with effective HR strategy, allowing communication, support and mentoring of staff, can continue towards an inclusive internal culture resulting in a content workforce with low turnover. Delivering agreed terms within written contracts may be noted as very different to maintaining the psychological and unspoken terms between employee and employer, as popularly theorised by Denise Rousseau in the mid 90’s, which has since been referred to and a concept accepted by the CIPD (Chartered Institute of Professional Development).

Achieving the holy grail of excellent culture, whether quantified by a Sunday newspaper’s business listing or through statistical analysis and auditing, might well involve time, structured processes, outsourcing to involve the appropriate advisors and of course the buy-in of senior management or board level directors.

Incidences of tribunal proceedings may be mitigated with improvements to internal processes and approaches surrounding HR function. These improvements can go a long way in reducing the risk of going to tribunal, but it is impossible to completely eradicate the occasional necessity. 

Inter-departmental grievance, apparent discrimination involving redundancy and many other circumstances can be particularly emotive for those involved and require prompt remedial action to reduce escalation.

Some individuals might regard workplace mediation as irrelevant. It may be labelled as a ‘soft touch’ or a ‘pointless means of discussion’ when perhaps a more robust approach, involving facts and legal judgement would be seen to some as a clarification of good judgement on behalf of a business.

There have been several academic studies and research undertaken in the last five years to establish the facts about the effectiveness of mediation and the use of ADR (Alternative Dispute Resolution) in the workplace and broader Civil & Commercial landscape. In 2008, Acas commissioned a survey amongst managers in 500 SMEs establishing opinions and experience of mediation. Four in five commented that mediation had either completely or partly resolved their contentious issue. The CIPD conflict management report of 2011 reports that 57% of companies surveyed have effectively used mediation as a means of internal dispute resolution.

In specific instances where confidentiality and negative publicity may adversely affect business activity and profitability, allowing for a private discussion of a situation without prejudice might well be useful for both employer and employee.

Employing an external mediator to deal with issues over legalities or a point of employment law may not be possible as the role of a mediator is to facilitate discussion and assist in finding an interest-based outcome.

A mediator will not judge or pass comment on rights or wrongs but instead actively listen and provide an external and unbiased means to achieve a working settlement.

The cost and ongoing damage to the employer may well be key factors in choosing whether to outsource mediation and will depend on the level and implications of the dispute at hand. Thought may be given to training of HR staff or director level in mediation thereby providing a means to internally resolve conflict at an early stage. If the neutrality or severity of the dispute warrants external involvement then outsourcing this might then be a suitable option.

Direct as well as indirect costs should be considered when identifying the value added by mediation, which can reduce or avoid prolonged internal disciplinary and grievance proceedings, sickness absence due to stress, staff turnover, loss of morale and productivity with departments. It can also prevent employees taking sides with one employee or group over another.

The use of conciliation services provided by Acas is both an accessible and effective means to resolve tribunal bound disputes. The existence and occurrence of disputes are however a variable, which can be managed strategically and with due process.

With an awareness and understanding of workplace mediation and its suitability, an HR department and wider staff could look to this skill as another tool to their kit for the improvement of internal culture and reduction of time spent dealing with adversarial tribunal proceedings.

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Callum Murray

Founder

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