The Gibbons review heard evidence that early mediation or conciliation in the workplace is the key to resolving disputes before irretrievable breakdown in relations occurs.The issue is how far it may be possible to place more weight on such “alternative dispute resolution” mechanisms so as to reduce the volume of claims reaching employment tribunals and improve the quality of outcomes. How far can experience of resolving disputes in other areas such as family or commercial law be applied to the field of employment?
Workplace conflict damages business performance by reducing levels of employee engagement.
CIPD supports the view that there is a clear business case for mediation, which can be summarized as follows:
* Time – mediation is often completed in one meeting, compared with the two days or more typically required for tribunal hearings
* Legal representation for the parties is optional and, in the absence of a legal framework, less critical to outcomes
* Proceedings are confidential so that parties are less likely to be trapped by positions adopted earlier
* Mediation takes a problem-solving approach to complaints, which reduces disruption and future problems
* Agreement is less likely to mean that one party wins and the other loses, leading to lower employee turnover
* The process is evidently fair since both parties contribute to finding a solution
* “Win-win” solutions support trust-based relationships and a culture of good people management.
Constraints on the use of mediation
How far can mediation be expected to take more of the strain of handling workplace conflict? Some employers, particularly in the public sector, have invested in training their staff to undertake mediation; others make use of mediation services provided external sources. However mediation is not the only option for organisations that seek to reduce or deal with workplace conflict. Investigations by outside persons may help to create a shared understanding of the facts which will facilitate early resolution. Employee Assistance Programmes can also be useful in providing employees with a way of raising issues which are worrying them.
More generally, mediation is likely to be most effective where organisations have in place training and support for line managers in people management skills. Our members’ experience suggests that, where such training has taken place, matters relating to alleged breaches of discipline or complaints by employees have been handled competently and concluded effectively. HR managers can support line management to restore trust-based relationships that have been disturbed by complaints including those related to discrimination, harassment and bullying.
However CIPD survey findings suggest that such training is not as common as it might be:
* only 30% of respondents train any employees in mediation skills
* training is more common in the public services (53%) than in other sectors (manufacturing and production 15%)
* 1in 4 employers use internal mediation
* 1 in 5 employers use external mediation (e.g. ACAS).
“Transactional” mediation and compromise agreements
A distinction can be drawn between “relational” mediation, which aims to produce a meeting of minds between the parties, and “transactional” mediation, which is primarily aimed at agreeing a settlement figure – perhaps with some conditions – which will compensate the employee for losing his or her job. Where a complaint has been resolved internally within an organisation through relational mediation, a compromise agreement may be considered as a means of endorsing the outcome. With the passage of time from an initial conflict emerging, the chances of successful relational mediation diminish but there may still be value in pursuing transactional mediation as a way of “drawing a line” under the relationship.
Where the aim is to agree a compensation figure in return for an employee leaving the organisation, whether or not there is a process of mediation, employers increasingly rely on concluding a compromise agreement with the employee. This is in order to ensure that no further statutory claims can be brought against the employer in respect of the employee’s service with the employer. The Government should recognize the value of compromise agreements in resolving issues in a way that meets the interests of both employer and employee, without the use of statutory machinery, provided that the employee receives independent advice.