Mediation for Employment Disputes – Don’t Get Left Behind
With the repeal of the existing Dispute Resolution Regulations and the progress of the Employment Bill it is clear that within the next 12 months mediation will be rising up the agenda for lawyers, Tribunal Chairpersons and companies alike.
Whilst we know the content of the draft Bill, the concern for employment lawyers is that we have not received the conclusions of the government’s consultation nor do we know the content of the new draft ACAS code which will include coverage of mediation.
This background is causing confusion and procrastination. Confusion for the HR professionals in companies with employment disputes to be resolved and procrastination on the part of litigation and employment lawyers who can’t decide whether to embrace mediation now or simply wait to see the conclusions from Gibbons and the final draft of the Employment Bill.
Companies Urged Not to Wait
For HR professionals our view is that there is absolutely no advantage in waiting – mediation should be considered for every employment dispute. The reasons are pretty clear:
- Mediation works – in 80% of cases that go to mediation a settlement is reached which both parties can accept. This often isn’t the same kind of settlement you might feel ‘forced into’ in order to avoid a tribunal situation, it’s a mutually agreeable settlement.
- A mediated approach is less aggressive than some other approaches and can enable the parties to come to an agreement which might even mean the employee can continue to work for you – or at least doesn’t leave under a cloud of ill feeling
- Using a mediator can be a very cost effective approach when compared to involving an employment law expert
- The confidential nature of mediation – compared to a court case for example – can have significant advantages for disputes you would prefer weren’t aired in public
- Mediation can be quick and relatively painless. With almost a third of all tribunal cases apparently taking 6 days or more, mediation, which sometimes can be settled in a single day has to be an attractive option.
Legal Experts Should Embrace Mediation
At Human Law Mediation we are seeing litigators, and especially Employment Lawyers playing a waiting game when it comes to mediation.
Whilst we know the content of the draft Bill, the concern for lawyers is that they don’t yet have the conclusions of the government’s consultation nor do they know the content of the new draft ACAS code. The view of Human Law Mediation is that there is no point in waiting for the legislation – in fact quite the contrary – those law firms that get ahead of the game when it comes to familiarising themselves with how mediation works, training their lawyers in key mediation skills and offering a mediated solution to clients will be the winners.
It is quite clear that there is going to be a mediation bias within the new legislation. For example, the Government is implementing some of the recommendations of the Gibbons Review such as repealing the statutory procedures and abolishing fixed periods for ACAS conciliation. Furthermore it was announced in February 2008 the Government has increased its funding of ACAS by £37m to help prevent workplace disputes. An increase in funding was requested by the Gibbons Review. It is highly likely a mediation bent is going to be within the new legislation by next year. Take the bull by the horns.
The Danger of Being Left Behind
Firms that move now risk no danger of being left behind by the new legislation and have more opportunity to prepare for the coming of mediation and develop skills and expertise in what is a new discipline for many lawyers.
A Head of Employment in a top London law firm told me that he had been involved in two mediations, both of which failed due to what he said was the “adversarial approach of the other side”.
If lawyers continue to be too adversarial within a mediation setting they will be out manoeuvred.
The winners will be those who are properly briefed in the mediation process and trained in the new skills required. They’ll be more likely to succeed in mediation scenarios and serve their clients better as a result.
Having been trained lawyers are more confident in seeing opportunities to mediate and will be encountering mediation and seeing the benefits of reduced cost and stress from going to Court. Clients will see the benefits of the process and will have less exposure to the existing cumbersome disciplinary and grievance procedures. In an ever difficult economic climate this will be appealing.
Law firms that embrace mediation now are sending a message to their clients that they are being proactive in anticipating client needs and taking a modern approach to dispute resolution.
Contact Human Law Mediation to discuss using mediation for employment disputes and to arrange training in mediation skills.
Better Dispute Resolution
A review of employment dispute resolution in Britain
Changing the way employment tribunals work
From Personnel Today
Mediation is coming to employment disputes
Mediation in action