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 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.