27 September 2004
Employment lawyer wishes to meet mediator with view to harmonious relationship. Every employment lawyer knows there is more workplace litigation about than ever before. The latest annual report of the Employment Tribunals Service (ETS) acknowledges a 17 per cent increase in tribunal applications for 2003-04. The reasons are many and include the Government’s penchant for introducing new employment laws, which inevitably fuels more claims, yet the Government would prefer less work for tribunals in order to reduce public expenditure. What can be done?
Ironically, many believe that the new Statutory Disciplinary and Grievance Procedures Regulations – effective from 1 October – while designed to discourage tribunal applications, will produce more tribunal cases. In fairness to the Government, the new regulations are only part of its holistic approach to the problem. One option is the use of alternative dispute resolution, especially mediation, but the Government is yet to promote it with real vigour. Of course, the Government should not make mediation compulsory in employment disputes. Compulsory mediation is a contradiction in terms. Mediation is a voluntary process to be undertaken only by consenting adults. But is mediation a good thing for individual employment disputes? If so, why is it employment lawyers are not encouraging their clients to give mediation a go? These and other questions led the Employment Lawyers Association to survey its members. The results were informative and surprising.
One-third of the respondents said they had used mediation to settle individual employment disputes. Many perceived advantages of mediation were articulated, such as saving costs, flexibility outcomes and confidentiality. One member mentioned that a day of mediation had saved the expense of a 10-day trial. A number complimented the “solutions-orientated” approach of mediation. As for confidentiality, the value of avoiding the tabloids reporting another ‘sex in the City’ case seems obvious. This all suggests mediation should be considered.
However, by my calculation, if only a third of those responding have mediated, a thumping two-thirds have not. Clearly, there are some obstacles to mediation. In the survey, respondents identified a number of factors, including ignorance of the process, doubts about its effectiveness, a lack of known mediators, cost and suspicion of the motives of those who suggest mediation. None of these seem to be impenetrable barriers to mediation. Looking at the matter from the perspective of employees, cost is a very material consideration, so Acas’s free conciliation service looks attractive. It is also running a number of mediation pilots, but it cannot be the only solution. The ETS report recorded around 115,000 tribunal applications for 2003-04. You can probably multiply the number of potential applications by 10. In the absence of a substantial increase in resource, Acas cannot mediate all employment disputes.
For me, the most striking response in the survey was that one-third of respondents confessed to virtually no knowledge about mediation. When asked whether mediation should be used more often, 80 per cent thought it should be. I interpret these seemingly contradictory answers as showing a belief in the merits of mediation but some diffidence about mediating. Employment lawyers are interested in mediation, but they are not going to take the plunge without more information, so if the Government wants fewer employment tribunal applications, it needs to take action. Awareness levels need to be raised and training tools provided. Mediation agreements, statistics of successful mediations and case studies should be published. Also, details of mediators should be made available. Sceptics of mediation not only say “show me some successful mediations”, but also ask, “how do I find the best mediator?”. These questions can be answered positively. Of course, mediation may not be appropriate for every case, but for those employment lawyers prepared to advise their clients to mediate, they may well find both client and lawyer take to mediation like a duck to water.
l See special report on employment, page 23