Mediation and Revising the Code of Practice on Discipline & Grievances at Work

16th January 2015

The Rt Hon Dr Vince Cable requests ACAS to revise the Code of Practice on Discipline and Grievance to reflect the changing nature of conflict and disputes at work. The revised non-statutory guidance released in September 2014, places mediation at the heart of dispute resolution. It is hoped a new Code will reflect this emphasis. The guidance cites a number of areas where cases are unsuitable for mediation. We see these situations differently.

MEDIATION SUITABLE AS A FIRST RESORT.

The procedural requirement for people to have their own direct conversations first at an informal stage is valid. The ACAS advice states mediation is unsuitable as a first resort, this advice fundamentally misunderstands the nature of conflict in UK employment relations. This advice starves internal mediation services of referrals and deprives managers of their responsibility to mediate within their teams at the earliest stage.

Culturally within the UK we are predominantly conflict avoiders. We do not raise issues directly with each other. This results in weeks and months of complaining to others rather than dealing with the issue with the relevant person. The fall out of limited communication, drop off in performance and low morale delays resolution and fuels escalation.

Avoidance is met by firm management and this is in turn is met by absence or grievance. Mediation is often recommended at this stage. For those who avoid this is too late, for the organisation a damaging pattern is already in place.

The most common perception of mediation is use at a post-grievance or post-disciplinary stage to salvage the relationship, get people working together again and aid people in their return to work. Mediation can be used at any stage. We recommend mediation be used at a preventative stage as an alternative to grievance and disciplinary rather than at a repair and salvage stage. This advice places relationships over procedures.

The perception of external, independent mediation is that it costs £800-£1200 per day. This is not the case. The difficulty is that the timing on the decision to mediate is often based on a costs equation

Internal damage £ + Future Risk & Liability £ = External cost for mediation £

It is only when sufficient damage is done and future risk justifies external expenditure that mediation is often brought in.

Mediation is often considered at the point of outcome of formal procedure with respect to costs going forward. Mediation should be costed against the losses and damage incurred from the first point of avoidance going forward.

ONE SIDE IS COMPLETELY INTRANSIGENT.

In conflict or dispute, one or both are often completely intransigent. For HR and managers it can be extremely difficult to get over resistant, stubborn attitudes and stances. This is where the skills of professional mediators come in. Unfortunately much mediation training today is at a basic level and focused on dispute resolution. Intransigence requires mediators skilled and trained in conflict resolution.

For our training courses and mediators, intransigence is the starting point. If people are not intransigent, then it is likely that a local manager or experienced HR professional could secure a solution. When this is not possible, this intransigence itself is an indicator for referral to professional mediation.

The market place is a confusing and complex place. Many mediators from a range of other professions, particularly civil and commercial mediation are bringing in models of mediation that are not designed for the workplace sector.

Contact us for an overview of the marketplace, what to look for and recommendations on specialist workplace mediation providers as well as ourselves.

We are increasingly being asked to mediate or train mediators on the basis of previous experience not delivering on the promise of mediation.

THE INDIVIDUAL BRINGING A HARASSMENT OR DISCRIMINATION CASE WANTS IT INVESTIGATED.

This phrase is listed in the guidance under situations which are ‘unsuitable for mediation’. The choice or want to have an investigation is right and proper. The rights of the employee and the duty of the employer are key factors here. Our concern here is that this wording could be misinterpreted. That this could be easily read as cases of harassment and discrimination are not suitable for mediation. This is clearly not the intention of the wording.

Importantly, the non-statutory guidance does not state anywhere that mediation is suitable for cases of discrimination. This omission deprives people experiencing discrimination of adequate information on their choices and options. Rights and access to goods and services such as mediation have been historically marginalised in this area through bad advice. Talk to us about how mediation can help in this area and how your internal mediation services can operate ethically and safely with issues of discrimination.

Many independent mediators lack sufficient experience, knowledge and expertise in the areas of harassment and discrimination. Mediators are often passionate advocates for the power of their own profession. This passion can often miss the risks and subtleties of complex issues.

Internal mediators can lack confidence in this area due to limited training, infrequent exposure to the issues as mediators and their role as employee pulling them away from the mediator role into a compliance function and duty of care on such issues. Many training courses offer limited coverage of such issues, specifically 5-day courses and generic courses.

For people experiencing harassment and discrimination, mediation provides an additional choice to address their rights, needs and interests. Whilst mediation is often cited as a process for interests and not rights, this misunderstands the nature of mediation.

Careful management of mediation with both participants and the organisation can offer a great deal of value in the most complex and challenging cases including discrimination and whistleblowing issues.

For the full ACAS non-statutory guidance on discipline and grievance see here – http://www.acas.org.uk/media/pdf/t/9/Discipline-and-grievances-Acas-guide.PDF

NAVIGATING A COMPLEX AND CONFUSING MARKETPLACE.

We are increasingly being asked to mediate where previous mediations have led to complications. We are increasingly being asked to re-train mediators trained by other leading, specialist providers. Contact us to talk about our approach, strengthening relationships and keeping people working together during difficult times.

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