Below are some of my responses to the recent whitepaper consulation conducted by the Department for Business Innovation & Skills:

2. Are there particular kinds of issues where mediation is especially helpful or where it is not likely to be helpful?

Contrary to popular belief, I believe mediation is particularly helpful in cases of perceived bullying and discrimination especially, around gender and race. It is less helpful in instances of bad management, although it can work well here if used early enough.

The rise in the need for mediation is more to do with the growth of managers who lack adequate management skills and experience than its suitability as a cheaper alternative to ET.

Also, depending on your measures of success, it can be used to help broker the end of a working relationship, even in formal compromise agreements.

3. What in your opinion, are the costs of mediation?

Depending on the service, £750-1500 for an external provider + costs in a workplace setting. These costs include staff cover, staff hours, venue and travel. In-house schemes mitigate this cost. There are also some admin costs in terms of time. However, should an exteranl resolution service be required, mediation, if it works, is by far the cheapest intervention .

4. What are the advantages and disadvantages of mediation?

ADVANTAGES: Mediation allows people to clear the air and provides an opportunity to build a relationship, unlike many other processes that often contribute to further hostility . It promotes understanding between people so they can make new choices about how they wish to relate. It is fast. Even if there is an end to the working relationship, mediation can help provide closure through understanding and negotiating reasons for and terms of the end of employment.

DISADVANTAGES: Meditation is not able to challenge systemic mismanagement problems especially where these may have created the problems that led to the need for mediation. The mediator can be placed in a difficult position when witnessing abusive power imbalances. The principle of confidentiality, while crucial, can limit the mediator’s capacity to do anything about this after the mediation has taken place.

5. What barriers are there to use and what ways are there to overcome them?

The biggest obstacle to mediation is lack of awareness about its achievements and measurement of its success. More published research on its success is needed! America has some good research, but there is still a big lack of it in the workplace within the UK.

Getting people away from their desks (or back form sick leave!) is also difficult and usually, if the conflict isn’t preventing them form working, then they may not see the need. On this basis, letting people know how much the conflict is impating their capacity at work can provide a good incentive to oercome this barrier.

Mediation is sometimes used too late and often presented too formally when it is. Going through mediation can be a challenging experience, and fear of that challenge can lead to people not participating. These challenges can include the fear of confronting a “bully” or, sometimes, their own shortcomings. Another obstacle to mediation is the reluctance of individuals who feel “hard done by” to go to an informal/offline process where they perceive power imbalances. They may be concerned that they will be “bullied” further or that they are letting the bully “get off easy.” This reluctance is potentially the biggest reason for increases in ETs.

On the other side, the employer with the institutional power may resent going through a process that does not lead to the trouble maker being sanctioned / sacked and so appears to be “a waste of everyone’s time.” (It can also be challenging for those in higher positions in an organisation to attend an “informal” setting where they may feel their authority is diminished through the mediation process.)

This can be overcome by improving management skills in the first place, such as by setting out clear expectations, ie the responsibility to address people’s concerns is on those who manage people. Where there is a breakdown, it is essential to have people – inside the organisation or outside it – who are able to promote mediation effectively.

The increase in ET’s is not just due to vexatious claims or ease of use/access, but due to the lack of awareness about the inappropriate use of power, such as in bullying. Training of managers and staff should include tools for recognising and addressing perceptions of bullying. The trick is that those with power usually are not aware of how they can be opporessive when they exert it. Even within this consultation paper there are comments such as “frivolous cases”(p17) that may unintentionally belittle some complainants reading this by repeating some people’s experience of being treated poorly or not taken seriously. It is often this lack of awareness by institutions, organisations and leaders that encourages people to seek formal processes as a way to redress perceived power imbalances. This is a complex issue, because those who seem powerless seem to then find ways of holding sway over businesses! However, unless we find ways to address the challenges of unconscious power use/abuse, people will be reluctant to use informal processes, and thus the use of mediation will remain secondary. I will be happy to discuss this further.

In the meantime, research on the achievements of mediation and greater awareness of, (and acceptability by) the main stream should help better establish mediation as a credible form of dispute resolution.

7. What are your views or experiences of in-house mediation schemes? (We are interested in advantages and disadvantages)

In-house mediation can be very effective. I have been directly involved in setting up at least three in-house mediation schemes and contributed to many others. They have two big selling points:

  1. Foremost they raise awareness of alternative dispute resolution across the entire organisation, thus promoting effective conflict resolution both informally and through mediation.
  2. It gives the organisation the skills to handle conflict as well as to conduct their own mediation. This not only increases the skills and engagement of staff and thus their capacity to contribute and enjoy their work, but also reduces the costs of formal processes.

There needs to be good internal communication about, and effective co-ordination, of the scheme or it will be a waste of time and money. The organisation also needs to have the resources to set up a workable case management system. Of course, whether an in-house mediation cell is viable will depend on the size of the organisation relative to the size of the investment.

Questions about the neutrality of the mediator, particularly given the need to obtain the consent of all parties, could complicate the effective operation of in-house mediation. Thus even where organisations have an in-house service, it may sometimes be necessary to draw on the services of an external mediator. It is sometimes difficult to say “No” to mediation for fear of being labelled the “troublemaker.”

What effect, if any, do you think extending the length of the qualifying period for an employee to be able to bring a claim for unfair dismissal from one to two years would have on  employers?

I think looking at what qualifies as unfair dismissal is a more interesting question than time period. The notion of using a court based system is problematic. I think that there should perhaps be an intermediary body, similar to ACAS, that’s role is to look at and/or create supporting management strategies for companies as a necessary step for both employer and employee before going to court. “Compromise agreements” could be used more often.