This series provides a thought-provoking analysis of the concept of mediation and its place and advantages in the businesses of today.  In particular, we will examine how an HR Professional’s role should be augmented so that the outcomes for the business can be enhanced; how mediation may be used for the benefit of all the main players. We will also set out the advantages which mediation can bring over the traditional adversarial route of resolving disputes which Solicitors need to be aware of.  In short, we will set out how mediation may be used for the benefit of all the main players.

What is mediation?

Mediation is a process where parties who are in dispute, come together with the help of an independent mediator and try to arrive at a mutually acceptable solution.    

Mediations are entirely voluntary - the parties take part because they want to.  It is not like court or tribunal proceedings where parties are obliged to attend and ultimately to receive a judgement which is imposed by the court or tribunal.

A mediation is confidential and takes place often in commercial meeting rooms, hotels or other private venues.  This is unlike a more public tribunal setting where participants and tribunal lists bearing the parties’ names can easily be seen, thus compromising privacy.

A mediation usually takes the form of either a lengthy meeting conducted over a day, or a series of small meetings conducted over several days.  The mediator and the disputing parties all attend.  The mediator’s role is to listen to the parties and help them to come to some common ground which can form the basis of a resolution.

The event is fairly informal when compared to court or tribunal settings.  A key aspect is that the client, rather than the lawyers, is centre-stage.  Mediations are generally more comfortable and palatable for the parties and to say that mediation is less stressful is perhaps an understatement. These factors help to contribute towards the success of mediation.

Different types of mediation

There are different types of mediation.  In the main, mediations in the workplace setting are facilitative mediations.  This means that the mediator uses his or her skills to bring parties to a position where they can develop resolutions themselves as opposed to the mediator imposing any resolution on the parties.  The mediator will often have legal skills and have ideas of his or her own but these are not imposed on the parties.  The idea of participants reaching their own resolution gives a sense of ownership to the resolution – essentially, disputing parties are more ‘bought in’ and will more likely give effect to resolutions that they themselves have come up with rather than being told by a tribunal judge what to do.  

How does mediation differ from traditional tribunal claims?

Tribunal cases work in a similar way to courts.  Everything is governed by strict legal procedure.  The parties, more often than not, have legal representation.  The claim commences by the service of an ET1, responded to by an ET3 and this sets the scene for the exchange of heavy legal documents and various legal processes required by the tribunal. The legal representatives will have to attend some mini-hearings concerning the progress of the case and the case is eventually listed for full hearing in front of a tribunal Judge. The detailed legal requirements result in much delay and expense. The process is also lacking in confidentiality in that tribunal lists with names of the parties to the dispute are available for all to see.  Businesses do not like this and prefer their dirty laundry not to be washed in public.  

Mediation strips away all of these formal requirements.  It is therefore quicker – can be set up within a couple of weeks – and infinitely cheaper when compared to the costs of a full-blown tribunal case.

Other tools before we choose mediation?

• Negotiation - this is where parties to a dispute come together and try to find a resolution informally.  It can be very successful and indeed should be tried first to see if there is any mileage in it before commencing mediation.
   
• Conciliation – this is a process offered by the Labour Relations Agency.  This has a measure of success, but the Early Conciliation (EC) process is constrained in that it is limited to one month.  If no resolution can be obtained within that period of time, then an EC Certificate will issue, closing down the Early Conciliation period and after that the matter, if it to be pursued, will progress as a formal complaint to the Tribunal. The tight timescale often means that it is difficult to resolve complex or high value matters via Early Conciliation.  
   
• Judicial Mediation – this is now offered as part of the tribunal process once the case is underway.  A judicial mediation is conducted by one of the tribunal judges (who will not eventually hear the case should the judicial mediation not be successful).  This service is proving somewhat limited as the process will only consider the parties taking actions that can be taken by a tribunal including the award of compensation. This contrasts unfavourably with the flexibility of mediation – see later articles in this series.
  
  We spend a large proportion of our lives in the workplace where arguments between employees can grow into emotional and charged disputes, escalating to involve more and more employees as time goes on – all very damaging to the business. It makes sense to try to resolve disputes earlier rather let them fester and gather more steam.  This is where the HR professional comes in.  They have close awareness of the dispute from its inception because all early paperwork (grievance and disciplinary etc) is dealt with by the HR department.  In many cases, mediation can take place at this very early stage and indeed the advantage of early mediation is clear because it can prevent the dispute from blowing up into something much larger which takes resources away from the business. HR professionals should therefore adopt a proactive role in seeking to encourage the business to use mediation at as early a stage as possible.  If this moment is lost then the tribunal procedure will commence, the lawyers will take over and everything becomes more fraught, painstakingly slow and infinitely more expensive.  Once the proceedings begin, a hearing is not assured even within the first year because of current listing delays. The time until the hearing is simply lost time.  The employee has probably left work and is unemployed.  The proceedings hang over the employer with all of the necessary administration that is required to support this. The HR professional can often prevent this loss to the business simply by encouraging mediation (which has an excellent success rate) at as early a stage as possible.