Employment Mediation
The ACAS Disciplinary and Grievance Code (April 6th 2009) and guide to discipline and grievances recommends the use of mediation where ever possible. Employment Tribunals are legally required to take the ACAS Code into account when considering relevant cases allowing them to adjust compensatory awards by up to 25% for unreasonable failure to comply with the provision of the Code.
Employers winning cases in Employment Tribunals are rarely awarded costs. In 2004/2005 0.8% of employers that successfully defended cases against them in Employment Tribunals received costs and they averaged c£1,000. So even when you as an employer have a good defence you will lose out financially and in management time.
An independent third party or mediator can sometimes help resolve disciplinary or grievance issues. Mediation is a voluntary process where the mediator helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator. The mediator is not there to judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do. The mediator is in charge of the process of seeking to resolve the problem but not the outcome. Mediators may be employees trained and accredited by an external mediation service who act as internal mediators in addition to their day jobs. Or they may be from an external mediation provider. They can work individually or in pairs as co-mediators.
There are no hard-and-fast rules for when mediation is appropriate but it can be used:
- For conflict involving colleagues of a similar job or grade, or between a line manager and their staff
- At any stage in the conflict as long as any ongoing formal procedures are put in abeyance, or where mediation is included as a stage in the procedures themselves
- To rebuild relationships after a formal dispute has been resolved
- To address a range of issues, including relationship breakdown, personality clashes, communication problems, bullying and harassment.
In some organisations mediation is written into formal discipline and grievance procedures as an optional stage. Where this is not the case, it is useful to be clear about whether the discipline and grievance procedure can be suspended if mediation is deemed to be an appropriate method of resolving the dispute.
Grievances most obviously lend themselves to the possibility of mediation. Managers may not always see it as appropriate to surrender their discretion in relation to disciplinary issues where they believe a point of principle is at stake, such as misconduct or poor performance. However, disciplinary and grievance issues can become blurred, and the employer may prefer to tackle the underlying relationship issues by means of mediation.
Mediation may not be suitable if:
- Used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation
- It is used by a manager to avoid their managerial responsibilities A decision about right or wrong is needed, for example where there is possible criminal activity
- The individual bringing a discrimination or harassment case wants it investigated
- The parties do not have the power to settle the issue
- One side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.
Mediation can provide a structured, effective means of avoiding Employment Tribunals. Using an independent, third party to guide negotiations can often help to defuse difficult situations, and the parties can make comments to the mediator, who, properly managing the flow of information ensures that information is transmitted in the most helpful way.
In many cases, mediation can be cost effective, discreet and provide certainty to the parties. It can also deliver to the parties benefits unavailable in an employment tribunal. Where the relationship looks as if it might be salvaged, the parties can plot both steps for change to achieve harmony and also an exit strategy. That way, if the old personality clashes rear their ugly heads again, the parties will already have agreed how they will part the ways. If the relationship is beyond repair, benefits can be obtained which cannot be ordered by tribunals: agreed references, effective restrictive covenants and secrecy.
Connect HR & Recruitment have skilled and experienced Mediators to assist in such circumstances throughout the UK