Written by: Clive Lewis Founder and Managing Director, Globis
Date: Tuesday, October 24, 2006

The recent news that years of wrangling and legal actions over the new Wembley Stadium have come to an end is great news for advocates of conflict resolution processes. After a debacle that has impacted the lives of many thousands of football fans the way was finally cleared for completion and a showpiece FA Cup Final in May 2007. It is estimated that the project, initially budgeted at £458 million will, some 8 years on, close with little change from £800 million.

Lord Carter of Coles has played a role that encouraged the main parties to come together to discuss differences and a workable solution that will result in achieving one main aim of opening the brand new 90,000 seat stadium. Before he was brought in, executives at WSNL and Multiplex were barely on speaking terms, with their lawyers the only conduit for discussion, each threatening to sue the other. One imagines the FA and government will be breathing a huge sigh of relief that the seemingly endless round of arguments that would have benefited no one but the lawyers is over.

What this public, high profile case demonstrates is the real value organisations can derive from engaging with conflict resolution tools such as mediation in a commercial setting. Whilst it is unlikely that the sheer size of this project is replicated as an everyday occurrence, organisations up and down the country will recognise many of the themes that have emerged from the Wembley case. It is all too easy to stand at a distance and criticise the Wembley project when in reality similar scenarios on a smaller scale happen regularly due to a failure of individuals to strike up open meaningful dialogue when issues arise.

When mediation – third party assisted negotiation – was introduced to the UK in the early 1990s, there was much resistance to the concept with clients and lawyers protesting that it would not work in the UK and that it was not relevant to the English or European legal systems.

The last few years, however, have seen developments within the government and judicial system that are leading to the beginnings of an acceptance for mediation within the UK.

The new English law Civil Procedure Rules (CPR) were introduced in April 1999. The overriding objective of the new rules was to enable the courts to “deal with cases justly” through active case management. Active case management was partly defined as“encouraging the parties to use an alternative dispute resolution procedure…” and this, the courts were able to do with or without the agreement of the parties. Thus mediation was firmly placed as a central feature of the new landscape of civil litigation.

Two case judgments, Dunnett v Railtrack in February and Hurst v Leeming have even greater implications for anyone bringing cases to court. Dunnett broke new ground as the first example of a successful litigant winning at trial, but losing the subsequent costs award because of an unreasonable refusal to follow the court’s earlier suggestion to mediate the dispute. In Hurst v Leeming the claimant withdrew his claim, but argued that costs should be borne by the defendant because he had refused offers to mediate both before and after proceedings had been issued. In this judgment, Mr Justice Lightman explained why he viewed the refusal to mediate as reasonable in the particular circumstances of the case but warned that refusal is a “high risk course to take”.

It is now widely expected that these two decisions will have a significant impact on the numbers of parties considering mediation before English court proceedings.

However, it should become increasingly less necessary to use legal cases to justify why organisations should attempt to use mediation prior to going to court or taking other rights based action.

For example, with the Wembley case we have seen costs spiral out of control due to an inability or unwillingness for parties to get together and talk things through leading to, amongst other things, wasted down time. Recently, research indicated that the cost of conflict to the UK is £33bn. This ranges from Customer disputes through to board room tensions that may result in a senior executive leaving the company.

Practitioners in the field of conflict resolution generally agree that there are only three ways in which disputes can be resolved – through power, rights or interests. Power based conflict resolution techniques such as coercion, and one way communication from someone in higher authority, generate a great deal of damage because they create winners and losers, destroy important relationships and only lead to potential further disputes.

Rights based methods such as legislation, litigation, rules and procedures were introduced to allow disputes to be resolved and encourage individuals to interact more peacefully. The exercise of rights is often perceived by those in power as diluting their authority. Rights-based processes similarly create winners and losers. While power-based relationships focus on preserving hierarchy and obedience, rights-based processes focus on enforcing contractual language and rarely lead to closure. Both power and rights based methods focus on suppressing or settling conflict and issues of difference rather than resolving and preventing them.

Interest based processes such as mediation in a commercial setting on the other hand, focuses on finding common ground and seeking to understand why people came into conflict in the first place. Interest based approaches focus therefore not just on what people want, but why they want it. As a result people are encouraged to learn from each other and work more collaboratively towards objectives.

Mediation also offers the advantage that it can be undertaken in tandem with any legal or statutory that may have begun, as it is without prejudice. If mediation doesn’t work (and it does in more than 80% of cases) then any legal process can continue its trajectory. It is only through interest based processes that everyone’s ability to learn from and prevent further conflict is increased.

Mediation differs from litigation in that the mediator is not a judge or arbitrator who decides the issues for the parties. It is a process that invites the participants to be creative, collaborative and be responsible for solutions. It is future-oriented and less concerned with deciding who is right or wrong than with solving problems so they do not occur again.

There are many reasons that can explain why mediation is now becoming an increasingly used method of conflict resolution for commercial cases. These include the high increase in the number of company court cases – a 3 fold year on year increase in 2005 – the higher levels of compensation and, for many, the realisation that the formal litigious process can in some circumstances be so adversarial and stressful to all concerned that any possibility of people working together again is minimal. The alternative in the Wembley case was a battle in the High Court that would have lasted years and cost tens of millions.

There is also the issue when the litigious route is taken that any work initially identified still needs to be carried out, so organisations may need to go through the tortuous tendering process from scratch again, adding even more costs to the process. Government too is also beginning to utilise mediation with the Lord Chancellor’s Department’s announcement in 2001 that all government departments would seek to avoid litigation by using mediation and other neutral-assisted dispute resolution procedures wherever possible.

Globis is beginning to see a steady increase in the number of commercial cases that are being referred for mediation. The business case for commercial mediation is clear. It can save organisations thousands of pounds. Mediation is quick, economic, private, confidential and flexible and can allow the commercial relationship between the parties to be preserved. Mediation can also be arranged within days or weeks rather than the months or years which are typical of litigation.

In a time of increasing shareholder and customer scrutiny, the commercial benefits of mediation can only be good news.

Date: 12 October 2007

Source: Equality and Human Rights Commission

Equality and Human Rights chair Trevor Phillips called for businesses to recognize that diversity should be a key source of energy and prosperity, not a cause of friction, conflict and inequality at the Times responsible business conference today.

Please click here to see the full news article.http://www.equalityhumanrights.com/en/newsandcomment/Pages/Workplaceiscrucialbattleground.aspx

(This link will take you to the Equality and Human Rights Commission website)

Date: October 11th 2007
Source: Daily Telegraph

Organisations must be aware of the importance of good relationships if they are to work together like one happy family
Almost all firms conduct joint projects with other firms. Yet, a recent study conducted at the University of Cologne has shown that over 50pc of supply-chain management projects fail.

For instance, in early 2006, a large German chemical producer attempted to improve its delivery process with a major client. The latter was to transfer data to the producer in order to increase the level of service and simultaneously reduce stock levels. 
This sounded good for both parties. However, far too late in the day, the customer realised that the chemical company would be receiving detailed information on its demand, stocks and costs. The managers baulked at revealing what they regarded as confidential information. This reluctance to divulge data, and the associated conflicts between seller and buyer failed to be resolved and the project ultimately petered out. 

Such simple, but prohibitive difficulties result in the failure of many supply chain projects, which really could have and ought to have been mutually beneficial.

At the University of Cologne, Andreas Brinkhoff and Ulrich Thonemann have researched supply chains for three years and found that the majority achieve less than expected. 

This is particularly problematic given that firms often devote years and substantial proportions of their IT budgets to this part of their operations. Brinkhoff and Thonemann investigated 87 supply chain projects in the manufacturing and consumer industries to determine which factors lead either to success or failure. 

They concentrated on inter-organisational initiatives which are becoming increasingly more important in the current business environment. By 2010, 97pc of the responding managers intend to extend their partnerships with other firms. 

Brinkhoff and Thonemann found that the problems go well beyond the standard text-book issues. The investigation revealed 10 key problem areas (see box). The top five are decisive and by far the main causes of failure. Most (88pc) of successful supply chains were those which managed to avoid the five key problems.

On the other hand, 91pc of the failed projects were characterised by three or more of the infamous five. These are extremely compelling results.
The first factor is that of insufficiently clear goals or insufficient agreement with the other partners. This problem was only manifest for six of the successful projects, but noticeably present in 58pc of the failures. In some cases, the teams actually performed as planned, but went off in different directions. For a joint project, such plans and mismatches are hopeless. Philipp Karallus, who heads the e-business centre of Bayer Material Sciences, found that this problem created enormous difficulties in the supply chain logistics. Fortunately, this was solved early on in the process, through a very consistent and well-communicated standardisation of packaging and quantities.The second cause of disaster is a lack of employee commitment. The people who actually work on the project must be convinced that the planned changes are necessary and appropriate. In 75pc of the failures, the employees directly affected were not fully behind the project. Supply-chain manager Jeremy Bentham of plastics manufacturer Borealis found that joint workshops, including both firms, provide a good solution. These entail not only communication on all elements of the project, but ensure the mutual development of change. This regular exchange of ideas also works wonders for motivation. In fact, the relationship between the company and its clients also improve at all levels of the hierarchy. 

Factor three relates to top management. Their support is particularly vital in order to ensure that the necessary resources are provided. And of course, this applies to both companies. Yet, such support is by no means the rule and two thirds of failures were attributable to this shortcoming. However, a project between 3M Healthcare and a large clinic is one example of where it did succeed. Ulrich Gellings, head of customer service at 3M in Germany, said that “the whole thing worked because the managers of both enterprises were clearly and genuinely behind the project and its objectives”. But he explained that this kind of positive interaction between project and line management can never be taken for granted – particularly between two different firms. 

Next comes the basis of trust, factor number four. As with any relationship, people must feel free to talk openly about problems in order to find solutions. Of the failed projects, just over half were plagued by a lack of trust, whereas this applied only to 19pc of the successful projects. As the manager of a Dutch chemical concern pointed out: “Of course, the partnership has to make economic sense in the first place. But whether or not the whole thing works will ultimately depend on the relationships involved.”Specifically, where there is a lack of trust, the participants often spend more time haggling over contracts than they do on the actual work. The inevitable lack of transparency and concealment that accompanies such relationships, generally leads to the collapse of the project. After all, once the relationships are damaged, getting them right again is somewhere between time consuming and impossible.

The effectiveness of the project leaders constitutes factor number five. Given the time span and organisational separation of the partners, such leadership is fundamental.These leaders form the interface between project teams and have to cope with problems from both sides. They have to be excellent communicators and motivators, not an easy task in complex projects where the contribution of the individual to the whole is not always particularly clear. Brinkhoff and Thonemann found that in many cases, the integrative skills of managers saved the day. Their willingness and ability to approach and resolve conflicts constructively, proved indispensable. So, according to the research, if the five cardinal errors are avoided, the supply chain project has a good chance of succeeding. Nonetheless, the standard bases of project management remain as important as ever. These include sound processes and structures, competent employees, well organised resource flows and a lot more besides. The point is that these criteria were unproblematic for almost all the investigated projects, yet so many still failed. The secret of success is apparently to deal with these five most common sources of disaster, which takes time and is not easy. Objectives and other core managerial processes have to be constantly discussed, evaluated, reworked and coordinated. Employees generally need sufficient workshops and interaction to ensure there is effective communication and consensus. Inter-company relationships have to be cared for and maintained. If all this is done correctly, the benefits are there in both economic and people terms. In almost all successful projects, the relationships between the partners are sound and positive. Not surprisingly, this is never the case where the result is ultimate failure.

Date: 4 October 2007

Source: People Management

Conducting an internal investigation into alleged employee misconduct requires skill and tact. Those carrying it out must balance thoroughness with fair treatment towards those under investigation. This isn’t easy but can be achieved with a little forethought. 

Before holding a disciplinary hearing, it is crucial that employers have sound evidence on which to base their decisions. Failing to conduct a full investigation, in all but the most exceptional of circumstances, may render a dismissal unfair and result in costly consequences in terms of tribunal awards, staff morale and stakeholder confidence. 

1 How serious is it? 

An investigation must establish the seriousness of the alleged misconduct and be proportionate to it. So, your response may range from a brief discussion with the employee to establish the facts, to a full-scale investigation involving other agencies such as the police. The objective should be to provide sound evidence for any subsequent disciplinary action. Investigators should ask themselves what they can reasonably expect to achieve given the time and resources available. Any internal investigation should follow the ‘Lift’ principle – it should be logical, impartial, fair and time-bound. 

2 Separation of powers 


Those conducting the investigation should not also hear the disciplinary complaint. These two functions should be kept separate in the interests of natural justice. Tribunals and the Acas code of practice on disciplinary and grievance procedures acknowledge this will not always be possible, especially for small businesses (www.acas.org.uk). Even so, if funds permit, employers should consider commissioning an independent investigator for more serious cases. For larger organisations, it is important that HR and the investigating manager work together. Protocols need to be agreed and good communications maintained throughout the investigation.

3 Keep an open mind 

Do not assume guilt or innocence. Decide whether the employee should be suspended on full pay pending the investigation. Make sure this is described as a precautionary measure – it should be made clear it is not a disciplinary sanction. Such action should only be considered in more serious cases where the employee’s continued presence in the workplace might have a disruptive effect or enable employees to undermine the case against them.

4 Establish the evidence 

Identify the types of evidence you need to gather. Don’t rely merely on witness statements. Think about gathering files, documents, CCTV footage or computer records, if available. Policy documents and training records can also be used. If any evidence is likely to perish or be removed, gather it as a priority. Decide who you need to interview and do it as soon as possible before memories fade. You are entitled to interview the employee against whom the allegation has been made, but it should be made clear it is an exploratory interview and not a disciplinary hearing. Identify what you need to establish from each interviewee and prepare accordingly. It is not advisable to have a pre-prepared list of questions as you may need to explore particular responses in more detail during the interview. It is better to prepare a list of topics and decide on the order in which you wish to deal with them.

5 Interviewing witnesses 


Make full notes when interviewing witnesses. At the end they should be invited to read through the notes and sign them. Draft statements should be taken back to the witness for signature and the notes on which the statement was based retained until the conclusion of any disciplinary hearing or subsequent appeal. Don’t put words into witnesses’ mouths or suggest answers. Your questions should encourage them to recall their version of events in their own words.

6 Manage witness expectations


Witnesses should be informed at the end of the interview that if the case results in a disciplinary hearing, they may be required to give evidence. They need to be aware that anonymity cannot be guaranteed unless there is a genuine fear of reprisal. 

7 Is it criminal? 

Some of the more serious allegations of misconduct may potentially be criminal offences. If you suspect this is the case, you may need to inform other agencies – for example, the Health and Safety Executive or the police. The evidence you gather for your internal investigation may also be required for a parallel criminal investigation. If this is the case, continuity of evidence is important. For your evidence to be admissible in a criminal prosecution, you need to be able to demonstrate its physical location at any point in time. Seek legal advice at an early stage on how continuity can best be achieved.

8 Handle confessions with care 

If an employee admits to a criminal offence during the course of an internal investigation, it is advisable to make a note of it in case it needs to be used as evidence in any subsequent criminal proceedings. The note should be timed, dated and signed by the person taking it and the employee should read and sign it. Where the employee disagrees with the record, note the details and ask them to read and sign them to the effect that they accurately reflect the disagreement. Any refusal to sign should also be recorded. The investigation should then be terminated with a view to involving the police or any other appropriate investigatory body. Failure to do this is likely to make such unsolicited comments inadmissible in a criminal court. 

9 When it’s over, it’s over 

Once you feel you have sufficient evidence on which to base a decision, finish the investigation. The standard of proof for most internal investigations and any subsequent disciplinary hearing will need only to be “on the balance of probabilities”. You do not have to prove your case “beyond reasonable doubt” for it to stand up in a tribunal. 

Key Points 

• Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. • For more serious cases, consider suspending the employee on full pay.• Approach investigations with an open mind and decide in advance what evidence you need.• If you decide to interview the employee against whom the allegation has been made, make it clear that it is not a disciplinary hearing.• The civil standard of proof (“on the balance of probabilities”) is an acceptable standard to work to.

Date: 4 October 2007


Source: People Management


Conducting an internal investigation into alleged employee misconduct requires skill and tact. Those carrying it out must balance thoroughness with fair treatment towards those under investigation. This isn’t easy but can be achieved with a little forethought. 


Before holding a disciplinary hearing, it is crucial that employers have sound evidence on which to base their decisions. Failing to conduct a full investigation, in all but the most exceptional of circumstances, may render a dismissal unfair and result in costly consequences in terms of tribunal awards, staff morale and stakeholder confidence. 


1 How serious is it? 


An investigation must establish the seriousness of the alleged misconduct and be proportionate to it. So, your response may range from a brief discussion with the employee to establish the facts, to a full-scale investigation involving other agencies such as the police. The objective should be to provide sound evidence for any subsequent disciplinary action. Investigators should ask themselves what they can reasonably expect to achieve given the time and resources available. Any internal investigation should follow the ‘Lift’ principle – it should be logical, impartial, fair and time-bound. 


2 Separation of powers 


Those conducting the investigation should not also hear the disciplinary complaint. These two functions should be kept separate in the interests of natural justice. Tribunals and the Acas code of practice on disciplinary and grievance procedures acknowledge this will not always be possible, especially for small businesses (www.acas.org.uk). Even so, if funds permit, employers should consider commissioning an independent investigator for more serious cases. For larger organisations, it is important that HR and the investigating manager work together. Protocols need to be agreed and good communications maintained throughout the investigation.


3 Keep an open mind 


Do not assume guilt or innocence. Decide whether the employee should be suspended on full pay pending the investigation. Make sure this is described as a precautionary measure – it should be made clear it is not a disciplinary sanction. Such action should only be considered in more serious cases where the employee’s continued presence in the workplace might have a disruptive effect or enable employees to undermine the case against them.


4 Establish the evidence 


Identify the types of evidence you need to gather. Don’t rely merely on witness statements. Think about gathering files, documents, CCTV footage or computer records, if available. Policy documents and training records can also be used. If any evidence is likely to perish or be removed, gather it as a priority. Decide who you need to interview and do it as soon as possible before memories fade. You are entitled to interview the employee against whom the allegation has been made, but it should be made clear it is an exploratory interview and not a disciplinary hearing. Identify what you need to establish from each interviewee and prepare accordingly. It is not advisable to have a pre-prepared list of questions as you may need to explore particular responses in more detail during the interview. It is better to prepare a list of topics and decide on the order in which you wish to deal with them.


5 Interviewing witnesses 


Make full notes when interviewing witnesses. At the end they should be invited to read through the notes and sign them. Draft statements should be taken back to the witness for signature and the notes on which the statement was based retained until the conclusion of any disciplinary hearing or subsequent appeal. Don’t put words into witnesses’ mouths or suggest answers. Your questions should encourage them to recall their version of events in their own words.


6 Manage witness expectations


Witnesses should be informed at the end of the interview that if the case results in a disciplinary hearing, they may be required to give evidence. They need to be aware that anonymity cannot be guaranteed unless there is a genuine fear of reprisal. 


7 Is it criminal? 


Some of the more serious allegations of misconduct may potentially be criminal offences. If you suspect this is the case, you may need to inform other agencies – for example, the Health and Safety Executive or the police. The evidence you gather for your internal investigation may also be required for a parallel criminal investigation. If this is the case, continuity of evidence is important. For your evidence to be admissible in a criminal prosecution, you need to be able to demonstrate its physical location at any point in time. Seek legal advice at an early stage on how continuity can best be achieved.


8 Handle confessions with care 


If an employee admits to a criminal offence during the course of an internal investigation, it is advisable to make a note of it in case it needs to be used as evidence in any subsequent criminal proceedings. The note should be timed, dated and signed by the person taking it and the employee should read and sign it. Where the employee disagrees with the record, note the details and ask them to read and sign them to the effect that they accurately reflect the disagreement. Any refusal to sign should also be recorded. The investigation should then be terminated with a view to involving the police or any other appropriate investigatory body. Failure to do this is likely to make such unsolicited comments inadmissible in a criminal court. 


9 When it’s over, it’s over 


Once you feel you have sufficient evidence on which to base a decision, finish the investigation. The standard of proof for most internal investigations and any subsequent disciplinary hearing will need only to be “on the balance of probabilities”. You do not have to prove your case “beyond reasonable doubt” for it to stand up in a tribunal. 


Key Points 

• Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. • For more serious cases, consider suspending the employee on full pay.• Approach investigations with an open mind and decide in advance what evidence you need.• If you decide to interview the employee against whom the allegation has been made, make it clear that it is not a disciplinary hearing.• The civil standard of proof (“on the balance of probabilities”) is an acceptable standard to work to.

Date: 1 October 2007

Source: Globis

Clive Lewis, Founder and Managing Director of Globis has been invited to address the Gloucestershire CIPD Network. Below are details of the event and a link to the Gloucestershire CIPD website for more information.

Event details:

Mediation in the workplace is set to become one of the biggest topics for UK organisations over the next few years. But what exactly is workplace mediation? Are UK organisations ready for it and how can it add value in places of work?

In this session, Clive Lewis will talk about the background to mediation, the importance of good relationships at work, the likely impact of the Gibbons review and the future for mediation and its links to other organisational processes within the workplace. The event will also be hosted at the new Globis Learning & Mediation Centre. This 2,500 sq ft facility was opened in June 2007 and provides meeting, training and conference space for local regional and national organisations.

For more on the event please click here:

http://www.cipd.co.uk/branch/gloucester/_events/gloucester-preventconflict-20071101

Clive will also be talking on a similar topic at the CIPD in Oxford early next year.

A response to Michael Gibbons ( Annex to CIPD response to DTI consultation Success at work). 

Date: 1 October 2007

Source: CIPD

Gibbons review heard evidence that early mediation or conciliation in the workplace is the key to resolving disputes before irretrievable breakdown in relations occurs. CIPD wholly agrees with this proposition. The issue is how far it may be possible to place more weight on such “alternative dispute resolution” mechanisms so as to reduce the volume of claims reaching employment tribunals and improve the quality of outcomes. How far can experience of resolving disputes in other areas such as family or commercial law be applied to the field of employment? 

Conflict in the workplace is a reality; anecdotal evidence suggests it may be increasing. The CIPD survey Managing Conflict at Work (See Reference 1 below) found that the main causes of conflict in order of importance were:

• behaviour/conduct 
• performance 
• sickness absence 
• attendance 
• relationships between colleagues 
• theft/fraud 
• bullying/harassment 
• sex discrimination.

Workplace conflict damages business performance by reducing levels of employee engagement.

Business case

There is a clear business case for mediation, which can be summarised as follows:

• Time – mediation is often completed in one meeting, compared with the two days or more typically required for tribunal hearings
• Legal representation for the parties is optional and, in the absence of a legal framework, less critical to outcomes
• Proceedings are confidential so that parties are less likely to be trapped by positions adopted earlier
• Mediation takes a problem-solving approach to complaints, which reduces disruption and future problems
• Agreement is less likely to mean that one party wins and the other loses, leading to lower employee turnover
• The process is evidently fair since both parties contribute to finding a solution
• “Win-win” solutions support trust-based relationships and a culture of good people management.

For many employers, however, the business case will be founded largely on the cost of dealing with tribunal claims. The CIPD survey Managing Conflict at Work (Reference 1) found that the average annual costs to employers of dealing with ET claims (excluding management time) was almost £20k. But management time is highly significant: businesses spend almost ten days on average dealing with an individual claim (including 7.7 days senior managers’ time). 33% of employers also report non-financial negative effects. The Gibbons review quotes data suggesting that the average cost of defending an individual ET claim in 2005 was around £9000. 

Other costs fall on the Government in terms of supporting the employment tribunal system and associated conciliation services, and on individuals who may suffer adverse effects on their health, strain on relationships inside and outside the workplace and damage to future career prospects.

What can CIPD do to encourage and support the wider use of mediation?

CIPD is currently discussing with its members the scope for doing more to encourage the wider use of mediation by employers. We plan to:

• urge employers to include provision for mediation in employment contracts, and place on our website appropriate forms of words. In many organisations, the procedures relating to individual grievances currently provide for some recourse to mediation or conciliation at an appropriate stage
• raise awareness and understanding of mediation, for example through participating in conferences, talking to branches and encouraging them to hold workshops on early dispute resolution, undertaking further research into dispute resolution, commissioning publications and writing articles for journals such as People Management. The objective would be to raise awareness and make the business case for mediation
• undertake, hopefully in partnership with others, a survey and case studies of mediation since evidence about the use of mediation in the UK is currently very limited. This could explore why some employers use mediation and why others do not, and the circumstances in which mediation is most likely to be successful
• urge the Government to commission a strategic review of the way in which workplace dispute resolution in the UK is managed and funded, and the longer-term role of mediation and other forms of alternative dispute resolution
• review the take-up of current CIPD commercial training courses on mediation skills for managers, and the implications for course design. We are currently discussing with Acas the scope for developing joint training in conflict management which could be targeted at both HR and line managers. The key to marketing such courses may lie in focusing on themes that are recognisable to employers, such as “difficult conversations”, bullying and harassment, stress and mental health and managing difference
• discuss with Acas the issue of accrediting mediators, to encourage the use by employers of external mediators
• review the emphasis on conflict resolution and mediation skills in the context of the current review of the CIPD professional standards.

Constraints on the use of mediation

How far can mediation be expected to take more of the strain of handling workplace conflict? Some employers, particularly in the public sector, have invested in training their staff to undertake mediation; others make use of mediation services provided by Acas or other external sources. However mediation is not the only option for organisations that seek to reduce or deal with workplace conflict. Investigations by outside persons may help to create a shared understanding of the facts which will facilitate early resolution. Employee Assistance Programmes can also be useful in providing employees with a way of raising issues which are worrying them.

CIPD members have underlined a number of practical constraints on the use of mediation, particularly if it is seen as a vehicle for reducing the volume of claims to employment tribunals:

• The Gibbons review shows that more than 9 out of 10 individuals leave their employment before or shortly after submitting a tribunal claim. Mediation is unlikely to be attractive to employers as a means of resolving issues affecting people who are no longer employed, or to those individuals themselves 
• As the Gibbons review fully accepts, mediation is more likely to be effective if it is deployed at an early stage, before attitudes have hardened. But this depends on organisations’ ability to identify and deal with issues at an early stage, which is in turn dependent on the quality and skills of line managers. This can be tackled by raising awareness and providing training but it is important to recognise that this will take time 
• In any case, by the time issues reach the stage where individuals are seeking to pursue their claim at a tribunal, the scope for mediation to achieve mutually agreeable outcomes will often have been seriously compromised. This does not mean that mediation may not be worth attempting at this stage, but it does mean that it is less likely to be attractive to one or both parties 
• Some managers are resistant to the idea of mediation since it seems to take responsibility for dealing with issues out of their own hands. Managers may also feel that by accepting mediation they are admitting they may have made a mistake. Managers may prefer that potential disturbance of relationships should be managed and remedied internally, with recourse to third party intervention seen essentially as a backstop 
• Members distinguish sharply between discipline and grievances as suitable subjects for mediation. Disciplinary procedures are essentially management decision making procedures with provision for appeals; grievances procedures are concerned with addressing complaints and arriving at an acceptable settlement or other outcome. Mediation is seen as less appropriate in disciplinary cases where employers believe existing procedures generally work well. Mediation will generally be less effective where one or other party believes that an issue of principle is at stake. 
• Will mediation be seen as fair to both sides? Any suggestion that mediation will inhibit individuals accessing their statutory rights will damage the chances of tribunals actively supporting and promoting mediation. If the “sisting” pilot in Scotland (aimed at encouraging parties to use mediation before pursuing claims at the employment tribunal) is judged to be successful, this might encourage the adoption of similar pilots in England and Wales.

There may also be more practical constraints on the ability to increase take-up of mediation significantly in the short term. For mediation to be effective, it needs to be available at short notice. In any case it is not always helpful for mediators to be “parachuted in”, since they will generally be unfamiliar with the background to the dispute. Internal mediators can often be brought in more quickly; however their skills may become rusty if they are not required to be used very often.  

Employers’ use of mediation

More generally, mediation is likely to be most effective where organisations have in place training and support for line managers in people management skills. Our members’ experience suggests that, where such training has taken place, matters relating to alleged breaches of discipline or complaints by employees have been handled competently and concluded effectively. HR managers can support line management to restore trust-based relationships that have been disturbed by complaints including those related to discrimination, harassment and bullying.�
However our evidence based on a survey of members (Managing conflict at work - Reference 1) suggests that such training is not as common as it might be:

• only 30% of respondents train any employees in mediation skills
• training is more common in the public services (53%) than in other sectors (manufacturing and production 15%)
• 1in 4 employers use internal mediation
• 1 in 5 employers use external mediation (e.g. ACAS).

HR managers need to be proactive in their relationships with line managers, encouraging them to spot problems earlier, and resolve them through a mediation-style approach, including giving managers better communication and feedback skills. Mediation is going to be most effective, and employees are less likely to feel inhibited from taking part, where workplaces are characterised by relationships based on trust rather than conflict. Mediation is not a panacea but one element in a spectrum of practices for preventing and resolving conflict. 

“Transactional” mediation and compromise agreements

A distinction can be drawn between “relational” mediation, which aims to produce a meeting of minds between the parties, and “transactional” mediation, which is primarily aimed at agreeing a settlement figure – perhaps with some conditions – which will compensate the employee for losing his or her job. Where a complaint has been resolved internally within an organisation through relational mediation, a compromise agreement may be considered as a means of endorsing the outcome. With the passage of time from an initial conflict emerging, the chances of successful relational mediation diminish but there may still be value in pursuing transactional mediation as a way of “drawing a line” under the relationship.

Where the aim is to agree a compensation figure in return for an employee leaving the organisation, whether or not there is a process of mediation, employers increasingly rely on concluding a compromise agreement with the employee. This is in order to ensure that no further statutory claims can be brought against the employer in respect of the employee’s service with the employer. The Government should recognise the value of compromise agreements in resolving issues in a way that meets the interests of both employer and employee, without the use of statutory machinery, provided that the employee receives independent advice.  

Conclusions

CIPD believes that:

• there is a strong business case for mediation, and the Institute will take action as outlined above to encourage and support employers in making more use of mediation and other methods of resolving conflict at an early stage
• mediation is a better and more cost-effective method of resolving workplace issues than dealing with claims through employment tribunals, and produces better outcomes for both employers and employees
• small firms in particular will be dependent on external sources of mediation, and significant investment of public funds through Acas will be needed to support increased uptake. Without such a commitment by the Government, no significant increase in the use of mediation is likely to occur, with the resulting impact on the costs of employment tribunals
• the Government should recognise that many employers use compromise agreements as a means of escaping the straitjacket of statutory enforcement mechanisms and should focus effort on ensuring that employees who sign such agreements do so on the basis of qualified and independent advice.

Interest by employers in mediation is part and parcel of good people management. Its successful use relies on line managers’ ability to identify emerging problems and take effective steps to deal with them. Mediation does not offer a quick fix to stem the flow of applications to employment tribunals. Promoting the wider use of mediation is a long-term process that can most effectively be undertaken in the context of a wider strategy for improving people management practice generally.

Date: 1 October 2007


This latest CIPD conflict at work survey reports survey findings on:�

• the impact of the statutory dispute procedures 
• training to manage conflict at work 
• mediation 
• formal disciplinary and grievance cases 
• employment tribunal claims 
• causes of conflict at work 
• sources of advice for UK employers in managing employment disputes 

Click here to review the report in full. (This link will take you to the CIPD’s website) 
http://www.cipd.co.uk/subjects/empreltns/general/_mngcnflcwk.htm