NEWS & VIEWS

Why Mediation is a Must

Mediation is the best route to resolve disputes. Litigation, either in public courts before a hearing occupies a great deal of management time. The classic processes using litigation externally or grievance procedures internally are increasingly seen as far too expensive, as taking too long and to be productive of excessive stress. 

Resolving disputes, either in public courts or privately within organisations occupies a great deal of management time. The classic processes using litigation externally or grievance procedures internally are increasingly seen as far too expensive, as taking too long and to be productive of excessive stress. In either the private or public sphere the alternative of a mediation process is gaining ground as a preferable alternative and yet there remains apparent resistance. In mediation an independent, neutral third party assists those in dispute to reach settlements that they are content to live with.

Here is a conundrum. Mediation overwhelmingly works well to settle employment litigation and yet it is chronically underused. Mediation is also a far cheaper and quicker method of resolving disputes than litigation.  Are these bold statements justified?  Yes they are, according to research carried out by the Employment Lawyers Association. Law firms were surveyed and half of those who responded said that 75% or more of employment disputes referred to mediation settled at or shortly after a mediation and a third said that at least 50% did so. Despite this record of success the same firms reported a low percentage of occasions on which mediation had been used.

As far as saving time is concerned perhaps the best evidence is available from the judicial mediation figures which were obtained from the Employment Tribunal service revealed in the same research carried out by the Employment Lawyers Association. Judicial mediation was introduced in 2009. Between 2009 and 2015 a total of 11,492 hearing days were saved by judicial mediation. The annual success rate was in the region of 70% although some judges claim a 90% success rate. On average and broadly speaking every day spent mediating saved the tribunal service three hearing days. Anecdotally in private sector mediations it is not at all uncommon for cases listed for well over a week to be settled in one day.

In addition to all of this mediating is a private process and avoids the problems caused by excessive and intrusive reporting. Whilst it was all very well for Jeremy Bentham to complain that “where there is no publicity there is no justice” we know that there is a great deal of injustice in the way cases are reported in a grossly tendentious (and often plainly inaccurate) manner.

As for disputes that have not reached the stage of litigation and occur within the workplace mediation has perhaps an even larger role to play. The standard grievance procedure has a tendency for parties to take sides in a confrontational manner that become adversarial and defensive.  In many  larger organizations grievance processes have become both cumbersome and expensive. In response a number of institutions have introduced in-house mediation programmes as an alternative to using the grievance route or to entirely replace grievances. For example East Sussex County Council have been using mediation for a number of years as an alternative and report increased retention rates as a result. Many other well-known larger employers have done the same, examples are Marks & Spencer, EDF Energy, Royal Mail, HSBC and National Express.

It is worthwhile considering factors that inhibit wider use of mediation. In the public sector some trade unions have reservations based on several factors such as fear of being replaced, dislike of closed procedures, fear that who pays the piper calls the tune and concerns that systemic problems are buried and not resolved. The answer here seems to be that any employer seeking to establish mediation as an accepted process needs to involve the union from the outset and to address and allay these concerns.

In the private sector some lawyers dislike mediation for strategic reasons fearing looking weak or giving too much information away. Others see mediation as a distraction from trial preparation or consider the parties are too entrenched to make a positive outcome likely. The reality is that considered from the perspective of those immediately involved, rather than that of trade unions or lawyers, mediation should be more available and more widely used than it is at present. There is increasing recognition of its advantages and traditional approaches will have to adapt to accept change.

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