AI Issue 9 2017

Acquisition International - September 2017 59 Restoring and Strengthening Working Relationships currently do workplace mediations. You have professional mediators, lawyers, HR consultants, and all the people in HR teams with or without formal mediation qualifications. Bear in mind that anybody who is willing to facilitate a joint focus on resolution rather than blame is acting as mediator, whether they are doing so consciously or not. This slow growth in awareness and use of mediation is much to be welcomed. However, where the service is being paid for, buyers are entitled to a degree of reassurance that they are getting what they pay for. The CMC anticipates the development of the equivalent of a kite-mark to say that this person is registered by a central and authoritative body. To that end, the CMC is working with the collaborative support of a number of normally competing mediation services providers – such a development is recognised as being in the best interests of the profession as a whole. The other “next step” for the future of employment and workplace mediation is to address the enormous disparity between the average 80%+ success rate in formal mediations in the workplace (I am proud to say that Sheridan Resolutions’ settlement rate is well into the 90s) and its usage, which is still relatively low. After all, the benefits of mediation on the one hand and the costs and stress and delays and risks of internal strife and Tribunal litigation on the other are all obvious. Fighting the average Tribunal case will cost thousands in legal costs and you probably won’t get any of that back, win or lose; average delays to hearing currently run from four to six months, and there’s always possible litigation risk and adverse PR. But worst of all, at the end of the grievance or Tribunal process someone has won and someone has lost, yet the need to get the job done and the fractured relationship between those charged with doing it are both still there. None of it compares favourably with getting a mediator, which you could do in a week or so. The process will be completely discreet and will cost often a fraction of what litigation would. Any resolution reached is also very likely to stick because it is a resolution reached between the parties themselves, not imposed on them by a Judge. Hence there has to be an open question: “Why isn’t mediation the default approach for workplace grievance resolution?” Sheridan Resolutions is working hard with the CMC and with many other mediation providers to get to that position. My current thinking is that it’s partly because people still don’t understand enough about it. Even where managers have heard of it, participating in mediation is sometimes seen by them as a sign of weakness and is resisted on that basis, or just as an expense and distraction which may not result in a solution anyway. Of course it might fail, but statistically it probably won’t. Even if it does, or if one party or the other declines to participate in the first place, that does not mean at all that the employer’s time or money has been wasted. On the contrary, it will then often have a much clearer picture both of the realistic likelihood of the dispute being resolved by formal means and of where the principal blockages to that resolution may be. The employer’s hand in arriving at a solution to the complaint could be significantly strengthened as a result. Of course, I don’t say that every workplace dispute is resolvable – some involve necessary issues of principle, precedent or misconduct where a discreet settlement does not achieve one party’s aims. But we find that the earlier the possibility is raised, the less scope there is for those issues to become terminal obstacles to an agreed resolution. There may also be a reluctance by some lawyers to recommend mediation to their clients. I have heard it said that some lawyers think ADR stands for Accepting Diminished Remuneration, but actually I think it is more likely that those who have not used it before will simply be nervous about recommending a process they do not fully understand and which they do not control. In our experience, all the more knowledgeable and confident legal practitioners on both sides of the employee-employer divide are actually keen advocates of the mediation process as representing the best way forward in the interests of their clients. I also believe that the Government has more to do to encourage the spread of mediation as a default option in workplace disputes. Much of the statute law and Acas guidance forces people down formal channels which seem almost designed to become confrontational and entrenched, fertile ground for lawyers, but barren of any realistic expectation of genuine and lasting solutions for the parties. I hope that Acas, in particular, will move mediation from the Foreword of its Code of Practice into the main body of it. This would be a real progress to build upon existing reform proposals for the UK judicial system as a whole. For us, the solution in all cases has to be training and education. I am seeing an increased number of employers offering conflict resolution and mediation skills for managers and leaders as part of their development agenda. Sheridan Resolutions, together with its training partners, provides a range of learning options as part of its Leadership Development offering, from formal full mediator accreditation to day-to-day conflict management and simple practice in difficult conversations. The one thing which is pretty much guaranteed in terms of formal workplace grievance procedures is that the personal relationships which underpin the employment itself will be finished at the end of them. That’s a cost to business in distraction, loss of expertise and experience and replacement costs and a cost to the employee who may well lose his or her job as a result. In its work with the CMC, CEDR and its other corporate partners and individual associates, Sheridan Resolutions will continue to seek to offer its clients the best chance of avoiding that outcome.