Avoiding an expensive dance

In the video below, I observe that disputes are a fact of organisational life and need to be dealt with swiftly and constructively.

They do not disappear through some peculiar process of osmosis, as some might wish, because this process does not exist.

Typically disputes have a particular shape or architecture - a series of spikes that grow and are amplified as the dispute spins out of control and various procedures take over.

I conclude with some thoughts on how this expensive dance can be avoided.

From here to there.

This article was originally prepared for my friends at Changeboard and is © Changeboard.

 

Mediation, HR and Bob Hoskins

For those involved in HR over a number of years, it is easy to conclude that employee relations has become more formal, the risk and cost of litigation has grown and the role of employment law in HR work has increased.  Indeed any number of large employers now have teams of staff to deal with employment disputes.  

Some of these developments have been valuable, giving weight to employee rights and due process.  

I did some research on this issue recently which involved looking at the case load of a firm of employment lawyers over a 24 month period.  I wasn’t surprised to find that grievances are taking longer and longer to conclude, a number of employers are not even prepared to have a discussion about a difficult issue without the use of such procedures and most grievances typically do not find in favour of the person taking the grievance.  

HR practitioners have stopped having difficult discussions, in part because they are frightened to do so, choosing to use grievance procedures instead; and formal means of resolving disputes rarely resolve disputes.

If there were problems at various stages of the production process in a car manufacturing plant, which would eventually lead to cars coming off the road, the production problems would be quickly resolved.  

In employment, the problems are looked upon as part of an expensive dance, typically leading to time consuming procedures, litigation or an expensive settlement.  

Very rarely are attempts made to resolve matters constructively and elegantly.  The increasing use of mediation may change this.

What is mediation?

CEDR use the following definition: 

"Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution."

The addition of mediation to tribunal claims

Mediation has been used for some time in employment disputes in the UK and increasingly elsewhere, including the Dubai International Financial Centre and Saudi Arabia.  From April 2014, anyone in the UK considering an employment tribunal claim will need to contact Acas. 

This service is called Early Conciliation and will attempt to resolve a dispute outside the tribunal system and before any proceedings are launched.  The process and its benefits are similar to mediation in a number of respects.

It is unclear for the moment what impact this will have on Tribunals and exactly how Early Conciliation will work in the early stages of implementation, given the significant increase in workload this will place upon Acas. 

But it is another step in the UK to resolving disputes prior to litigation and will inevitably increase the use of mediation.

How can you use mediation in your organisation?

The traditional role of HR practitioners as an honest broker between employees and management has changed to one of being an advocate for management and, on occasion, an enforcer.  The skills and practice of mediation reflect the more traditional approach - listening actively to those involved, working to find a solution acceptable to all and exercising a high degree of empathy.

Currently mediation is used when litigation has started, external legal advisers are in place and when at least one of the parties involved is seeking to settle the claim in advance of a tribunal.  

In my experience it is usually legal advisers who recommend considering mediation and yet there is a significant role for practitioners to play in recommending mediation and then being involved in the process.  

The advantages of such involvement are many, including confidentiality and discretion, both of which are typically lost during later stages of litigation.  With active use of mediation, practitioners will protect the public image of their company.  This may also benefit the claimant if e.g. the claimant avoids having their name mentioned in Tribunal proceedings which then appears in on-line searches by recruiters and potential employers.

Even if mediation is not successful on the day, discussions often lead to a resolution at a later date, again without further litigation.  The success rate for mediation is claimed to be as high as 80-90%.  Practitioners can be involved in these discussions and can help facilitate the final agreement.

A family member once neatly summarised my life when in HR - I was paid ever-increasing sums of money to listen to equally over-paid folks complain.  To the extent that practitioners “soak up” concerns and complaints and then deal with them constructively, this summary is correct if rather damning.

Mediation deals more effectively with the emotional aspects of a dispute, providing a space where emotions can be expressed and heard.  It can identify solutions which are not readily available during the later stages of a dispute or subsequent litigation e.g. a simple apology. I was involved as a party to a mediation where it was evident the claimant wanted an apology and this was an essential part of the final agreement.  It was, of course, a shame the apology had not been offered much earlier.  In the midst of a dispute, it is easy to ignore the emotional aspects on both sides, but practitioners should recognise and deal with this.  If they don’t, it is unlikely to happen anywhere else.

Finally one of my objectives as a practitioner was to ensure very few employment disputes reached the leadership team.  Litigation is not only time consuming and costly, it is also distracting and worrying over many months for all involved.  The cost to the individual is clear, but I have witnessed any number of leadership teams in such disputes and it is equally costly for them in different ways. The more HR practitioners can do to ensure such disputes are resolved on a timely basis, the better it will be for everybody. 

The late Bob Hoskins was famous for various roles - a London gangster in The Long Good Friday, watching helplessly as his empire crumbles around him; a private detective in Who Framed Roger Rabbit?; and his appearance in BT adverts where he told us “it’s good to talk”.  

His advice is as relevant to employment disputes as it is to making telephone calls. 

From here to there.

This article was originally prepared for my friends at Changeboard and is © Changeboard.

Dispute resolution

Sometimes it is easier to talk to resolve a disagreement or dispute.  On most occasions however we struggle to have difficult discussions before disputes then spin out of control.  

Mediation allows a way of encouraging discussions and resolution.

Mediation

Mediation is increasingly used to resolve employment disputes and is attractive for a number of reasons:

  • it is confidential and any final agreement, which is legally binding, will reinforce the confidentiality of mediation discussions and the terms of the agreement
  • those involved do not have to worry about publicity
  • it is "without prejudice" and thus all possible solutions can be explored before an agreement is signed
  • those involved retain control of mediation and the agreement rather than passing it to somebody else e.g. a Tribunal or an Arbitrator.  As a result, the mediation is less formal 
  • those involved tend to be supported by existing legal advisors
  • it is a cost-effective means of resolving a dispute with a typical mediation taking no more than two days
  • even if mediation is not successful, the discussions often lead to a resolution at a later date, again without further litigation
  • mediation can identify solutions which are not evident during the early stages of a dispute or subsequent litigation e.g. the provision of a reference or an apology
  • Tribunals increasingly expect claimants to have mediated before litigating and will expect the mediation effort to be a serious one
  • litigation is not only time consuming and costly, it is also distracting and worrying over many months for those involved

UK Advisory, Conciliation and Arbitration Service (Acas) initiative - April 2014

From April 2014, anyone thinking about making an employment tribunal claim will need to contact Acas. 

The Enterprise and Regulatory Reform Act makes changes to the employment tribunal process, including providing for prospective claimants to contact Acas before they can begin certain types of Employment Tribunal proceedings. 

This service will be called Early Conciliation and will attempt to resolve a dispute outside the tribunal system and before any Tribunal proceedings are launched.  The process and its benefits are similar to mediation in a number of respects.

It is unclear for the moment what impact this will have on Tribunals and exactly how Early Conciliation will work in the early stages of implementation, given the significant increase in workload this will place upon Acas. 

But it is another step in the UK to resolving disputes prior to litigation and will increase the use of mediation.

Early resolution of disputes

Most employment disputes have a number of distinguishing features:

  • An unwillingness or inability to deal with difficult situations in a timely and transparent manner
  • Informal discussions quickly lead to formal discussions with little space for resolution
  • Use of internal appeals or grievance procedures which rarely if ever result in a conclusion which is satisfactory to all involved and are increasingly legalistic
  • A suspicion by employers that employees are being briefed by legal advisors, with the employees confused about how best to proceed
  • An escalation of the discussions to HR and in-house lawyers with local management no longer leading discussions
  • Typically happening at times of significant change e.g. economic downturn or during the company’s annual cycle e.g. bonus, pay and promotion announcements
  • The process of managing litigation takes over immediately before or after a claim is made to the Tribunal or litigation is threatened, by which time attitudes have hardened and external advisors are involved

There is a role for mediation at an early stage in potential disputes and certainly before litigation is launched. And it would be easier to talk.

From here to there.