Mediation will play an important role in settling disputes – notes the role of coaching in supporting formal mediation training
Christopher Mordue

Mediation is set to play a key role in resolving employment disputes as the government yet again attempts to reduce the burden on business, and the tribunal system, of employment litigation. The reforms aim to promote resolution of disputes in the workplace and reduce the number of tribunal claims. If that sounds familiar, it’s because it is – the statutory dismissal and grievance procedures introduced under the Employment Act 2002 had the same purpose. Earlier this year, the Gibbons review of employment dispute resolution, which preceded the government’s current consultation paper, recommended the repeal of these procedures. It said they were operating to entrench disputes and put the focus on compliance rather than solving the underlying issues.

The Gibbons review identified mediation as the nearest thing to a “silver bullet” in making litigation the last resort. At present, most mediation whether through Acas, judicial mediation in the tribunal system or using external mediators takes place once a tribunal complaint has been issued.What seems to be on the cards is a greater role for mediation before a claim is issued – in other words, as part of the employer’s grievance procedure. While the government consultation paper is less than explicit on how mediation will be encouraged,it contains a threat that tribunals may be able to make costs awards against parties who have made insuffi cient efforts to resolve their dispute.

Many employers are already using mediation to prevent the costs associated with disputes. Some organisations, such as universities and local authorities, have set up networks of in-house mediators. Others are revising their grievance procedures to include mediation as a recognised stage in formal procedures. The aim is to avoid adversarial hearings and lengthy investigations. Coaching and mentoring can play a significant role in making mediation work. An in-house mediation team needs to be well trained and able to maintain integrity and independence.

Coaching and mentoring offer valuable support to more formal mediation training, providing an ongoing source of advice and best practice as well as a means of sharing techniques that have helped to resolve similar disputes in the past. Even in organisations where mediation networks aren’t in place, line managers can use mediation techniques when handling grievances at informal stages. Again, coaching and mentoring networks provide an invaluable sounding board on identifying solutions,engaging the parties in dialogue, breaking through barriers to agreement and managing the parties in the future.

Although not every dispute will be resolved, the benefits to employers from successful mediation are obvious. Tribunal litigation is often disproportionately expensive to the potential liabilities involved and a timeconsuming process for all. What’s more, the rarity of costs awards means that often the best result the employer can hope for is that the tribunal rules that the employee’s claim should fail. Anything that can spare employers the trouble and cost of establishing that they were right all along is definitely worth investigating.

Christopher Mordue is partner in the employment group at Pinsent Masons. christopher.mordue@pinsentmasons.com 0113 294 5194

Volume 2, Issue 6