Mediation-An Alternative Way To Deal With Grievances
It is a legal requirement for businesses to
have in place a written grievance procedure
which at least complies with the statutory
grievance procedure.
Sometimes especially in intra employee issues the use of the grievance procedure does not always resolve conflict in the workplace.
There is another less formal voluntary process
but in certain circumstances just as effective
procedure to address these issues which is
mediation. Mediation can be used at any stage
of conflict, although it is particularly
effective if used in the early stages; it can
prevent problems escalating leading to more
formal action, including employment tribunal
claims.
Face to face mediation offers a way forward for
employees in conflict to meet with a neutral
third party (the ‘mediator’) with a view to
reaching agreement between the parties about the
best way the relationship can be managed. It
gives the parties an opportunity to work
together in order to rebuild the relationship
and is therefore a dynamic, participative
process rather than a passive procedure.
An experienced mediator will work with the
employees to identify their “issues” and
distinguish these issues from their respective
“positions”. The mediator’s role is to enable
effective communication to take place between
the employees with a view to them reaching
agreement, rather than the mediator imposing an
outcome. Essentially, successful mediation helps
employees reach a “win win” outcome using shared
problem solving techniques rather than risking
the “win lose” outcome of the traditional
adversarial approach. It is not legally binding,
but having actively participated in the process
it is more likely that the employees will commit
to the agreed outcome.
In order for mediation to have a reasonable
chance of success the following features are
advisable:
- The employees agree freely to enter into
mediation – there can be no compulsion;
- Each employee undertakes to treat the process
confidentially but may agree to the mediator
sending recommendations to the commissioning
manager at the end of the process;
- Either employee can withdraw at any time.
Withdrawal will mean the end of the mediation
and employees can pursue more traditional
methods of raising complaints if they wish;
- Employees understand that mediation is seldom
a one-off event, rather it is a process which
may take time to achieve a positive outcome;
- The mediator must be impartial and both
employees need to agree to the choice of
mediator;
- The mediator will agree guidelines with both
employees at the outset;
- The mediator’s role includes listening to employees’ views; identifying the cause of the conflict and working with the parties to develop a proposed course of action to resolve the problems within the relationship.
Mediation has its limitations in the types of
disputes it can resolve. Clearly bullying and
harassment issues are best suited to this
process. ACAS in its new code on discipline and
grievances recognises that mediation is an option
rather than being another procedural element
which must be addressed.
It is helpful if the purpose and process of
mediation is explained to all parties
beforehand. Whilst the attitude and needs of the
parties determines the length of time the
process takes, a “typical” mediation would
normally involve an initial one-to-one meeting
with each person followed by one or more
sessions with the employees together. Ideally
meetings should take place in a neutral
environment; preferably ‘off site.’ At the very
least, the mediation should be held in private,
in a room free from interruptions. It is also
essential that employers are clear as to where
mediation fits into their grievance and
disciplinary procedures and what happens if
either party pulls out or the mediator decides
to stop the process. Conversely employees must
understand that matters discussed during
mediation cannot be repeated outside of the
process.
At the end of the process it is advisable for
both employees to summarise their agreement in
writing and sign it. With their consent, this
can be passed on to any relevant line manager or
HR manager, as appropriate. The mediator, with
the employees’ consent will also send their
recommendations for next steps to the person
responsible for commissioning the mediation. A
follow up meeting can be conducted by the
mediator at a later stage, with the agreement of
the employees.
Whilst highly effective, mediation is not
suitable for all conflict situations. Mediation
is inappropriate if one party feels coerced into
agreeing to it, they want an allegation of
discrimination investigated, there is inequality
in how effectively each party can represent
their own interests during mediation or the
conflict is long standing and the parties have
become entrenched in their positions. It will
also be ineffective if not properly supported by
the employer, for example, in time allocation or
provision of an experienced mediator.
SM Services
02085020846
November 2008