business

How Mediation Could Help Your Business Avoid Litigation

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Conflict can arise in any employment relationship but left unchecked or not handled in the right manner, it can easily escalate, potentially leading to costly disciplinary or legal proceedings.

Mediation can help business owners avoid these more formal routes by helping to guide both parties towards more mutually acceptable solutions. However, CIPD research finds that only 23% of employers use internal mediation by a trained member of staff to deal with workplace issues and fewer than one in ten use external mediation.

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Whilst it isn’t a solution for every workplace disagreement, it does appear to be an underused tool for employers and can help prevent workplace conflict from becoming a full blown and costly dispute.

What is mediation?

The Cambridge Dictionary defines mediation as 'the process of attempting to help two separate groups involved in a dispute to agree or to find a solution to their problem'.

In the workplace, mediation can be used informally to prevent the escalation of formal issues, such as workplace grievances, or to manage the end of an employment relationship, as well as other, potentially positive outcomes, such as the rebuilding of relationships. The ultimate aim of mediation within the employment field is to avoid formal proceedings.
There are various frameworks that practitioners can use but in all of them the mediator offers an independent and impartial presence that is unafraid to challenge or ask difficult questions.

When is it appropriate?

There are no hard and fast rules governing when mediation should be used but it can be a helpful tool in most employment related disputes.

We already see a form of dispute resolution within the employment field via the Advisory, Conciliation and Arbitration Service (ACAS) conciliation period, which is a period of time where resolution is encouraged and facilitated by this independent, public body, to see if an agreement can be reached without going to tribunal.

Mediation can be used at any stage of a dispute. If used in the early stages, it can obviously prevent potential issues from escalating but it can also be called in at a later stage, if it seems managers aren’t best placed to deal with a dispute, due to lack of the required training, for example, or if they themselves are implicated.

Progeny Associate Director, Zee Hussain, who is a solicitor specialising in employment law comments:

“Mediation is becoming increasingly common in the UK and internationally, as parties to a dispute try to avoid the costs, in terms of time and money, of litigation. The courts and tribunals also encourage parties to mediate, and a judge can even punish a party who unreasonably refuses to mediate, by making costs orders against them, regardless of the outcome of their case.”

Does it work?

The results of mediation can include minimising cost to both parties, avoiding lengthy disputes, fostering open and honest discussion, the preservation or reframing of relationships, and further solutions defined by the parties themselves.

The success rate of mediation, in terms of the number of cases reaching a settlement, was an impressive 93% in 2020, up from 89% in 2019. The primary purpose of mediation is to reach a settlement of some sort; whether this be a legally binding settlement or other, less formal outcomes such as a commitment to change behaviour, an agreement to review policies and procedures, share work more fairly or provide more responsibility.

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If the parties do not reach an agreement, anything that has been said during the mediation remains without prejudice and cannot be used in legal proceedings. Mediation can therefore be an effective tool to host two-way, frank and honest discussion about what each party really wants from a situation.

Impact of Covid

Due to the Covid-19 pandemic, we have also seen mediation shift from being typically face-to-face to being undertaken in a virtual setting, with 90% of mediations being carried out online between March and September 2020.

If this trend continues post-pandemic, it could see increased use of mediation in workplace disputes. From a practical perspective, virtual mediation is easier to organise, more cost-effective and individuals may be more inclined to participate when they can simply log in from a convenient and more relaxed setting during their day, compared with attending a more traditional in-person mediation session.

In summary, the benefits of mediation range from being a more cost-effective and timely alternative to litigation to offering the capacity for providing solutions and outcomes that would otherwise sit outside of the legal process.

For businesses who have never used mediation, qualified mediators can be found very easily online, so it is well worth considering this as a tool to add to your HR toolkit for the year ahead.

Charlotte Hudson

Charlotte Hudson is an HR Consultant at Progeny and an IMI qualified Mediator