In this short article, Jack Harrington and Radhika Das from our employment and pensions team consider the use of mediation as a conflict resolution tool. They look at why employers should be utilising mediation, the benefits of doing so, and how to implement mediation in your workplace.

A recent Acas study found that workplace conflict costs employers around £30bn per year. It reported that nearly half a million employees resign each year as a result of conflict, costing employers around £2.6bn annually. A further 874,000 are estimated to have taken sickness absence each year as a result of conflict, at a cost of around £2.2bn annually.

The study found that while 35% of respondents had experienced an incident of conflict or ongoing difficult relationships at work, just 5% had taken part in workplace mediation. Of those who did go through mediation, 74% said their conflict was fully or largely resolved.

Mediation is a flexible, voluntary and confidential form of dispute resolution increasingly being used for resolving disputes in the workplace as an alternative to more formal procedures. A CIPD survey suggested that ‘mediation is an effective approach to help resolve workplace disputes [which] should be required before using the formal grievance process.’

Larger organisations have set up their own internal mediation schemes in order to train employees to act as mediators. Often, employers prefer to engage an external mediator. External mediators offer a number of benefits, including:

• Saving resources: setting up an internal scheme can be costly and employees often don’t have the time to commit to facilitating a mediation process.
• Conflicts of interest: it can be difficult for an employee to remain impartial and unbiased.
• Seniority: if those involved in the mediation are senior individuals within the business, it can be difficult for an employee to feel comfortable facilitating the mediation.
• Confidentiality: disputes often concern sensitive or confidential information. An external mediator can help to control the spread of that information within the organisation.

A simple first step on the journey to introducing workplace mediation is to include mediation in internal policies and procedures as part of the organisation’s approach to people management. For example, as the CIPD survey referenced above suggests, encourage mediation to be considered before the formal grievance process is used.

It is increasingly being recognised that mediation can be a ‘win-win’ approach – employees are able to reach a resolution without going through a lengthy and adversarial process, and employers are able to improve staff retention and avoid expensive tribunal claims. It is unsurprising therefore that the reported number of mediations carried out in England and Wales jumped from 2,000 in 2003 to 12,000 by 2018 and 16,500 by 2020.

Our employment and pensions team have qualified mediators who would be happy to assist you with implementing mediation as an approach to resolve workplace disputes. For more information, please contact jack.harrington@pannonecorporate.com.

We will be talking more about the benefits of workplace mediation and practical tips on approaching it at our next HR Club on 14 September 2023 – contact jolanta.jones@pannonecorporate.com to register your place.

How do you prepare for and ensure that a mediation has the most chance of success? When it comes to mediation, the measure of success depends on a wide range of factors. But, the methods of reaching a mutual and agreeable solution are often the same.

We have won national awards for our use of mediation. We have been using mediation as a method of dispute resolution for over 16 years. The dispute resolution team at Pannone Corporate know that mediation is a valuable and preferable form of dispute resolution for clients. Mediation is confidential, flexible, easy to arrange and a controlled environment. It is also much less expensive than a trial. While the following tips are by no means comprehensive, they are a good starting point and essential to consider prior to any mediation proceedings.

1) Timing is Critical

When it comes to mediation, timing can be key. Introducing mediation early into a situation can prevent further legal escalation, as well as helping to maintain relationships between parties. It can also help to avoid the legal fees, management time, reputational risk and other associated costs of going to trial. However mediating too early can be a mistake if the parties don’t understand enough about their own position or the opponent’s case. Again mediating very late on in a dispute, such as a few weeks before trial, can be a mistake as the parties are usually entrenched in their positions and significant costs have been incurred.

Additionally, if neither side has any expectation or intention of settling the case then mediation is not a good use of time or money.

2) Preparation

A large part of successful negotiation derives from preparing your case. This sounds obvious but there is nothing that beats knowing your case, including any weaknesses, as part of mediation preparation. You want to work with your lawyers in the approach to a mediation to understand the likely approach of the mediator, the issues that will form the basis of the discussions, the difficult legal and commercial issues, parameters for settlement and, importantly, what is your plan if mediation fails. Do you have a plan B? You do not want to be trying to devise a plan B while sitting in the mediation at 6pm.

3) Devil’s Advocate

As part of the preparation for mediation, you must understand the strengths and weaknesses of the opposition’s argument and have answers to their strongest points if possible. Knowing the opponent’s position as well as you do your own case is vital. The opponent’s perception of its case will influence their approach to settlement. Put yourself in their shoes as part of your preparation. What will be their focus?

4) Don’t Be Afraid to Walk Away

Mediation has a good track record in settling disputes but it is not always successful. If it is apparent that the two positions being argued for are worlds apart, then you should feel confident to walk away from mediation at any point. Before doing so you must appreciate what your next step will be. Leaving a mediation when the other party is behaving unreasonably can be a cathartic step but you need to know what your plan B is. Sometimes it is useful to postpone or adjourn the mediation as this can give both sides a chance to consider further their positions following a period of reflection or taking further advice. A bad deal is not better than no deal in most cases.

The disputes team at Pannone Corporate have represented clients in hundreds of mediations across a wide range of disputes and sectors. We have long-standing relationships with some of the foremost mediators in the UK and we use our experience to suggest the most appropriate mediator for any particular dispute. For an obligation-free discussion of your circumstances, please call our expert team of dispute resolution solicitors on 0800 131 3355 or contact us via our enquiry form.