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A Guide to Mediating in Scotland$

Ewan Malcolm and Fiona O'Donnell

Print publication date: 2009

Print ISBN-13: 9781845860523

Published to Edinburgh Scholarship Online: September 2015

DOI: 10.3366/edinburgh/9781845860523.001.0001

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Employment/Workplace Mediation

Employment/Workplace Mediation

Chapter:
(p.37) Chapter 5 Employment/Workplace Mediation
Source:
A Guide to Mediating in Scotland
Author(s):

John Moffat

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9781845860523.003.0005

Abstract and Keywords

This chapter provides an overview of employment/workplace mediation in Scotland. Since 1 October 2004, all employers, regardless of their size, have been required to operate within the statutory grievance procedures set out in the Employment Act 2002. The chapter first considers the causes of conflict, disagreements and tense or damaged relationships in the workplace, along with the effects of conflict on both the employer and the individual employees. It then discusses the cost of conflict in the workplace as well as the fundamental points that must be taken into account before and after setting up mediation in the workplace. It also explains the use and benefits of mediation to address workplace conflict through its safe, voluntary, confidential and independent approach. Finally, it compares cost options of addressing conflict in the workplace, with particular emphasis on grievance and disciplinary costs and external mediation costs.

Keywords:   workplace mediation, Scotland, employers, grievance procedures, Employment Act 2002, employees, workplace conflict, disciplinary costs, mediation costs

This chapter focuses on the use and benefits of mediation in the workplace being delivered by professionally trained mediators and the potential positive effect on damaged or strained workplace relationships, work performance and business delivery. On occasion, tense, difficult or conflict-based situations will arise in the workplace and mediation provides a safe, voluntary, confidential and independent approach to addressing these.

The content of this chapter is likely to be of most benefit to employers seeking to introduce mediation to the workplace (be that an internal service, external provision or a combination of both). However, it may also offer something for those with some mediation services in place to review or refresh their current provisions and consider the cost/benefit analysis of using mediation.

The fundamental points for consideration are reasonably straightforward, though each may have many “follow-on” or spin-off decisions as described further on in this chapter.

Points to Consider

  1. 1. How does my organisation currently address workplace conflicts?

  2. 2. How much is that costing?

  3. 3. Would a review of conflict management produce savings or improve the working environment for all involved?

  4. 4. Do we need to introduce mediation to reflect good or best practice and the general legislative direction for dispute resolution?

If a review concludes that a mediation approach would be of benefit, the next key steps to consider are:

  1. (p.38) 5. The right model and provider.

  2. 6. Getting organisational support from all stakeholders.

  3. 7. Advertising and communicating the existence of and access to mediation.

  4. 8. Putting in place the administrative support and monitoring standards.

  5. 9. Rolling out and implementing the service.

  6. 10. Assessing success and developing the use of mediation.

The Requirement to Address Workplace Grievance/Conflict

Since 1 October 2004 all employers, regardless of their size, have been required to operate within the statutory grievance procedures set out in the Employment Act 2002. Anti-discriminatory legislation also moves forward at a great pace, as do the overarching bodies that monitor and address discrimination.

More generally, employers normally have internal processes that define the requirement, expectation and standards of employee attendance, performance, conduct and behaviour. There may be an informal as well as a formal route for addressing each of these.

Where an employment issue relating to any of these arises, anxiety, tension and fear for employment are often significant features and can have a negative effect on staff and work. Irrespective of the event or issue that has caused conflict to arise, it is often the case that feelings of fear, bitterness, anger and frustration can manifest themselves into the frame of mind of “fight or flight”, both of which can have personal and employment consequences. Where a complaint or grievance is made, good employment practice should seek to address and/or resolve the issue and encourage a healthy workplace and a workforce that is happy to come to work, perform effectively and behave appropriately.

Addressing workplace difficulties makes sound business sense insofar as it helps minimise the possibility and risk of claims of breach of contract or unfair/constructive dismissal. However, employers must show how they have addressed any issues and come to a reasonable conclusion in a fair, transparent and equitable way. It is also beneficial to set in place learning outcomes from the process of addressing these issues.

Employers have legal responsibilities to their staff and are accountable to various statutory and legal bodies for their actions if claims are brought against them. Cases relating to harassment and discrimination can be exceptionally expensive. Any failure to address (p.39) such workplace issues can lead to intervention from external bodies such as the Equality and Human Rights Commission and cause serious damage to an employer’s reputation, generally creating a negative impression of an employer in terms of attracting staff in a competitive workplace market.

Causes of Conflict

Conflict, disagreements and tense or damaged relationships have without doubt existed in the workplace in one form or another for as long as there have been employers and a workforce.

Over the 45 years or more we might be in employment in our lifetime, at some point or another we will fall out with or have a significant argument with a colleague, manager or other work-related contact. What has changed, and continues to evolve and develop, is the employer’s response to conflict and what causes it. It is clear there is a greater emphasis on the expectation and/or requirement placed upon employers to find more successful and sustainable ways of dealing with workplace tensions and conflict. One of the emergent ways to address conflict has been the growth of what is referred to as alternative dispute resolution (ADR) methods. ADR in its broadest sense refers to any way of addressing a conflict or dispute either on a legislative and/or statutory basis, or more attractively at a much lower level, avoiding recourse to a body that will issue a judgement.

Effects of Conflict

The effects of conflict can translate into significant consequences for both the employer and the individual employees involved in conflict, particularly where it is not addressed or is left unaddressed for long periods of time. Below is a list of possible effects on both employee and employer.

Employee

  • Anxiety and fear, or anger and bitterness affecting relationships with work colleagues or employer.

  • Increased absence levels, primarily through illness.

  • Poor levels of performance or production that may threaten employment.

  • Learned negative behaviours.

  • Unable to perform as effectively in team-based workflow.

  • Personal time and energy spent on going over or reliving situations or arguing with colleagues.

  • (p.40) A negative attitude or resistance to being involved in improving relationships.

Employer

  • Poor levels of performance or production that may threaten the business.

  • Dissatisfied or unhappy staff.

  • Increased absences from work, by the employee and potentially other colleagues in the same working environment who are impacted upon by the conflict.

  • Time, resource and energy spent investigating and addressing relationship difficulties.

  • The employer being accused of a failure to fulfil its duty of care.

  • Employees resigning with the possibility of constructive dismissal claims.

  • Damage to the employer’s reputation.

If for as long as there have been workplace relationships, there have also been workplace tensions, then it is logical to assume employees and employers ought to try to improve or solve these to create a productive working environment. Improvements to working relationships include investigations of complaints (to varying degrees of expertise), pursuance by individuals of grievances, people sorting it out for themselves, or managers (who may be directly involved) or other independent or neutral people facilitating some form of coming together to address individuals issues, which may include some form of mediation skills.

Sadly it is also true that in some cases, people have been ignored, told it’s their own problem to solve, asked or told to “leave it”. In some cases individuals have no doubt been given the fairly blunt option of “get on with it or get out of it”: in effect, resign. It is also probable that some employees have been dismissed for being perceived as “rocking the boat” or otherwise being troublesome to the employer. That in turn invites ex-employees who have felt forced to resign or been dismissed unfairly to consider external legal remedies to address their claims. While hopefully some of these scenarios are less frequent, we must also recognise the burgeoning numbers of cases going to the employment tribunal.

The questions employers might consider are: are employees becoming more and better informed about their rights and more able to exploit management failings successfully? Or is a culture of litigation emerging in the workplace? In reality there is probably an increase (p.41) of individual rights and of the expectation placed on employers in relation to resolving disputes and a greater degree of willingness to challenge that. Therefore employers need to assess and quantify the risk and likelihood of a dismissal or other action being deemed unfair and, if it is deemed so, what the cost might be organisationally in hard and soft terms.

Cost of Conflict

Cost factors that employers will consider when looking at dispute resolution are: relative cost against the benefits of mediation; success rates of mediation; measuring an increase of performance or a return to previous performance levels of the employees involved in mediation; and most importantly addressing the question: “What level of expenditure is cost effective in relation to the requirements of the employer and to reducing or removing tensions or dealing with arguments and disagreements in the workplace?”

Few employers appear to calculate the cost of the time and resources they expend to address employee conflicts and disputes in the workplace. Neither do they seem to assess the relative success of resolution interventions, analyse the processes that allow staff to raise concerns about workplace relationships, or record how often these arise. Since most organisations do not cost conflict, an initial baseline figure often does not exist. Some basic estimating would probably be beneficial to employers as this will allow other costing calculations to have a meaningful comparative context. So, for example, an employer might seek to consider on an annual basis:

  • the numbers of grievances, disciplinary and significant disruptions caused by poor working relationships;

  • the amount of hours spent by all staff and managers involved;

  • the relative hourly rate involved in each case;

  • the cost of any directly related sickness absence;

  • the cost of external settlements following a successful tribunal claim (and the need for an organisation to quantify contingent, vicarious and direct liability);

  • the cost of reparation claims;

  • the cost of internal settlements (compromise agreements).

With more difficulty, nominal costs might be gathered or “guesstimated” to quantify less direct involvement costs, ie the attendance and general health, feelings and attitudes of people involved on the periphery and reduced or lost productivity. Such nominal figures (p.42) can be vague, but these are impacting factors and do have a cost consequence.

All of these are the hard costs of addressing tensions and conflict. With this information, a basic costing model can be used as a comparison against a range of potential solutions or interventions to address workplace conflict. The primary intervention to consider is mediation. Employers should equally bear in mind the positive impact and benefits, which are often notoriously difficult to fully quantify.

(p.43)

Benefits of Addressing Workplace Conflict through Mediation

  • Conflict is less likely to escalate.

  • Encourages an atmosphere of mutual dignity and respect.

  • Working relationships are improved.

  • Encourages the management of working relationships to be a personal responsibility.

  • Addressing conflict can be used to transfer negative energy into more positive directions.

  • Employees develop a sense of empowerment and self-achievement.

  • Managers who adopt a mediation approach may become more confident and generally competent as managers and organisational leaders.

  • A cultural ethos of finding sustainable solutions develops from mediated approaches, which permeates into all aspects of the workplace.

  • It reflects good employment practice.

  • Where there are partnership or trade union relationships within the workplace, such an approach is well received and regarded (sometimes as the basis of a partnership model).

  • Reduces or minimises the risk of legal action being taken against the employer.

Addressing Conflict in the Workplace

Conflict is often addressed through rigid, complex and escalation-based processes and structures such as disciplinary, conduct and grievance procedures with which organisations tend to be most comfortable and which have developed over a long time either within the organisation itself or through employment legislation. It should also be noted that these often encourage polarised and self-defined (p.44) roles and positions (victim, perpetrator, witness and judge) and largely place the expectation for resolution to be made in the form of judgment or arbiter’s decision falling on one side or another. In other words: a series of classic “win/lose” scenarios. These outcomes often leave participants viewing issues as remaining unresolved or unsatisfactorily addressed, as can also be their feelings of anger, fear, bitterness and frustration.

Trends in dispute and conflict resolution are changing and it is now considered that effective and sustainable remedies can and should be considered and that successful outcomes can be achieved when conflict is addressed at a lower and more direct level as quickly as possible after it arises and when it is “owned and controlled” by those in conflict. In this way resolution can follow a simpler, more effective, sustainable and also organisationally cheaper route (in comparison to formal routes) and arguably with less likelihood of recourse to employment tribunal and/or other statutory bodies.

The nature of conflict has a tendency in some situations to draw others into it. Sometimes the ripple effect of conflict in the workplace can be serious and have significant consequences for a large number of individuals. As well as immediate work colleagues, it seems inevitable that others will also become involved such as line managers, HR, trade union reps and more senior managers. Of those listed, each in their own way may have the potential to offer meaningful and useful inputs or interventions into conflict resolution, particularly in organisations that invest heavily in interpersonal skills development. It should be recognised that useful and effective resolution can be achieved by those listed but also that there is a point at which in some situations they will not have the professional expertise to address and get the best outcome from the conflict or the issues of concern.

It seems reasonably safe to suggest that an important factor in addressing conflict is a recognition that the skills set, awareness and understanding of conflict resolution has a direct bearing on the outcome of interventions. However some of those interventions can potentially make things worse or escalate matters. The important element is in the key players’ recognition of their own skill levels in dispute resolution and the extent to which they can deploy this effectively and/or recognise when and if it is more beneficial to pursue a conflict as:

  • a formal matter (discipline or grievance?);

  • an issue that can be resolved between the parties;

  • an issue that can be managed locally;

  • an issue that can be progressed through mediation.

(p.45) If an organisation recognises a need for a formal level of intervention, the processes of investigation or grievance may be initiated. Experience suggests that at this stage there is little or no routine consideration or comparison of potential costs for pursuing any particular option.

For the other options, the underlying assumption is that the parties directly involved are willing participants. However, usually there are more people involved than just the participants, such as line managers, trade union reps and HR advisers who may have had some input. Where this is the case and when it is identified that an issue goes beyond personal comfort, authority or competency, those involved in making that decision should be acknowledged. A handover of authority is easier when participants feel they have been given recognition, respect and acknowledgement of the input they have deployed to that point. This helps and encourages quicker, holistic and co-operative resolutions.

Employers who do not have access to mediation by way of an internal service or external mediation contract have the option of securing any number of professional mediators. However, where there is not an in-house service or contract, and where no relative cost comparison model exists, mediation may be regarded as a prohibitive cost, or one that is not budgeted for if the budgetary authority to spend lies outwith those involved.

Comparing Cost Options of Addressing Conflict

Grievance and disciplinary costs

Where a baseline figure exists of the cost to resolve conflict, comparative costs for mediation can be made. This requires employers to look at a number of factors. For the formal disciplinary and grievance processes this is likely (though not exhaustively) to include:

  • the cost of the conflict, how long it has gone on for, and the overall effect on the workplace (productivity and performance);

  • any associated costs of employee absence;

  • management time in drawing together initial documentation;

  • employees’ time spent in pursuance of the conflict;

  • investigator and interviewees’ time (potential for travel and subsistence costs);

  • management and employee/HR/trade union rep time spent in the disciplinary complaint or grievance interviews;

  • management time spent in reaching a conclusion;

  • time spent on appeal mechanisms;

  • (p.46) time spent in individuals adjusting to outcome (potential upheaval if one party is moved);

  • if a dismissal is the outcome, time spent at a tribunal, defending unfair dismissal claims.

External mediation costs

Where a procurement exercise has resulted in the appointment of a mediation contract there may be elements to that which include access to a mediation provider’s website, helpline or other advisory inputs. The contract may also stipulate set costs and an assumed minimum numbers of mediations for the provider. Invoicing arrangements will be agreed and cleared, as will travel and subsistence rates which may include overnight costs. Where there is no pre-arranged contractual arrangement, mediation can be secured through a market search of available providers. The Scottish Mediation Register is a useful resource. Usually mediators charge on a daily or part-day basis.

Additional employer costs involved in mediation:

  • cost of involvement of those participating in mediation;

  • any backfilling costs in relation to releasing employees for mediation;

  • cost of time involved in arranging mediation;

  • parties travelling to mediation (travel and subsistence);

  • mediation location (neutral venue) costs.

In-house mediators or a mediation service

Some employers have developed internal mediation services or trained professional mediators within the workplace to deal with situations that arise. This requires individuals to have a recognised qualification in workplace mediation skills and practice and an expectation that they will regularly practise mediation. Normally employers provide training for staff to attain the qualification and also provide some form of regular (annual) refresher training.

Cost Modelling

In the preceding sections a range, though not exhaustive, of potential cost factors have been highlighted. For any organisation, however, the primary issue is in deciding whether or not to introduce mediation.

Some organisations may consider that introducing mediation is a natural and progressive development reflecting a business and (p.47) employment trend. As such they may feel a need or a wish to introduce mediation as a matter of course and the cost implication is one they are not addressing actively, assuming that, as an additional option or tool, mediation will play its part in resolving conflicts.

For other organisations it will, for budgeting and economic reasons, be more important to model and compare the costs. Some quantitive and qualitative research is required to profile and record the existing costs of workplace relationship failure or dysfunction — conduct, discipline, grievance and other dignity and respect-based complaints or allegations — against costing the introduction of a mediation model.

Mediation is likely to appear to be an “on-demand cost” for organisations. However seeing mediation in that way is perhaps too simplistic. The key element of the comparison is what an organisation believes mediation can achieve and the principles behind its introduction.

As a potential cost-saving methodology there is a need to accept that any cost benefit that mediation will procure needs to be set against realistic targets over a realistic timeframe. Measures of success and milestones for mediation may be best set in terms of a gradual reduction in cases going to discipline, grievance or other complaint procedure, and improvement in staff assessment of the employer and the workplace through retention rates and staff satisfaction: for example, through surveys and other staff-based assessment of the working environment.

Checklist for Developing Mediation

The following checklist may be useful to organisations considering introducing mediation into the workplace.

Purpose, scope and principles of mediation

An organisation needs to be clear about the what, who, why and how in respect of mediation. Careful and well-researched consideration of the fundamental rationale and relatively detailed planning in the first stages will have marked benefits in the following stages. It is the difference between a coherent and well-thought-out strategy and “making it up along the way”.

Organisations should consult with trade unions or staff representatives at a very early stage (perhaps best to have them involved from inception) and look at such options as a staff survey, focus groups, a consultation document and any other form of approach that has the dual benefit of allowing a sense of ownership and advance advertising.

(p.48) Once information and research is complete and collated there are many benefits of expressing the following:

  • A definition of what, for the organisation, mediation is, and what it is expected, required, and hoped to achieve in the workplace context.

  • Consideration of who within the organisation that mediation could benefit and under what circumstances.

  • Who within the organisation supports mediation.

  • What are the general principles of how mediation will be applied in the workplace, ie location of mediations, confidentiality, and the recording of outcomes.

Considering the mediation provision for the organisation

In considering what the right provision is for your mediation service, a number of factors should be looked at and weighed carefully.

  1. 1. Ad hoc mediators/mediation service — as required

    Many independent mediators or small companies are likely to be available on a case-by-case basis and as need arises. However, knowing how and where to source reputable and properly trained or accredited practitioners is important. It is worthwhile researching what mediation providers are available in the area(s) where the workplace exists. The Scottish Mediation Register can be a useful source of information about mediators experienced in different sorts of disputes.

  2. 2. External contract to provide specific mediation requirements

    This may be sourced through an invitation to tender process or perhaps some more informal contract arrangement. Then the basic contract should specify the anticipated requirement for mediation, the type of mediation, the standards/qualification expected, the required response time to set up and deliver the mediation, feedback arrangements, the process for setting up the mediation and named contact points for both the mediation supplier and the contractor.

  3. 3. In-house service

    Workplace in-house mediation services are a relatively new approach which can evolve to become what the organisation needs. However, that is not always the best business approach and the same rigour of an external contract should be (p.49) applied to the provisions an in-house service is required to deliver.

    Assuming that qualified and fully trained mediators exist within the organisation (and the costs involved are dealt with as a separate part of the in-house process) then an internal contract or service level agreement should specify the anticipated requirement for mediation, the type of mediation, the standards/qualification expected, the required response time to set up and deliver the mediation, feedback arrangements, the process for setting up the mediation and named contact points for both the mediation supplier and the contractor.

  4. 4. Combination of provision

    Any combination of the options outlined can be melded together to provide the required service for any organisation.

Using the mediation provider

Once a provider has been chosen, consideration needs to be given on a case-by-case basis of what and who is the best way to approach the mediation. For example:

  • Is this a matter that can be mediated?

  • Have all parties entered into the process in good faith?

  • Are all the parties able to participate, in terms of health and wellbeing?

  • Will mediators be seen by all parties as neutral and independent? (This is particularly relevant if using an in-house mediator.)

  • Can the mediator be released from any other duties or be available when needed?

  • Will the parties accept the individuals?

Mediation practitioner standards

Although mediation is still, in many respects, going through a continuing developmental phase, it is a recognised professional skill and one which normally requires practitioners to hold a recognised qualification. When looking at mediation and mediators it is very important that any mediators, whether freelance or those who carry out work on behalf of an organisation, have recognised qualifications and can provide evidence of having recently practised mediation or have in some other way kept their skills refreshed.

(p.50) Developing an organisational approach or strategy to mediation

Once an organisation has decided to make mediation a feature of its dispute resolution strategy, it is important that all interested parties and potential stakeholders understand why it has been introduced, what it hopes to do, where it fits into the overarching approach to standards, and expectations of conduct and behaviour in the work-place. It is also fundamental that each stakeholder has a good understanding of their role in creating and supporting a mediation-friendly environment. Stakeholders include, but are not limited to: staff, line managers, HR, TUS, senior management, and the Board.

Encouraging a mediation environment initially requires significant organisational input and emphasis and all level support from the top down and bottom up. It is crucial that all the key stakeholders agree on the principal points of mediation and are prepared to support it publicly and assist with the delivery of getting the message across organisationally. This can be achieved in any number or combinations of ways, for example:

  • normal and routine communication channels;

  • company website or intranet;

  • in-house publications;

  • trade unions’ or staff groups’ publications;

  • posters;

  • roadshows;

  • e-learning or other training events;

  • pamphlets/leaflets sent to all staff or readily available in workplace locations.

Support for mediation — administration of process

Consider what is needed in the way of forms, contact points, recording of mediation case outcomes, evaluating, costing, monitoring, and developing the mediation provision. Also look at developing pro forma examples of all of the above and/or electronic alternatives.

Manage and learn from outcomes

Confidentiality and sensitivity about the content and context of mediation are paramount and outcomes cannot be linked to individual cases. However, it may be possible to use very general themes coming out from mediations to help organisations see whether there are particular “hotspots” or types of issues that arise more frequently than others.

(p.51) A holistic approach

Consider making or encouraging mediation to be part of a holistic approach to organisational conflict and dispute resolution. Most organisations will have their own discipline and grievance procedures. In addition some may have developed dignity and rights at work or bullying and harassment strategies. Mediation often fits well alongside or embedded within such procedures. Where it is possible organisations may wish to think about a joined-up approach and linked strategy.

Follow-up

What can sometimes be missed in workplace conflict following a mediation intervention is that the formal or mediated outcome is not necessarily the end of the process for participants, and it is very rarely the end of the process for managers and HR, and workplace colleagues. It is important to remember that conflicts have a genesis, a lifespan, and a conclusion, but can also potentially be re-ignited. Solutions to address this can include using mediators to do further work with participants and/or more generally with being aware of sensitivities in regards to the re-introduction of individuals back in to the workplace in a structured, supported and agreed way. (p.52)

Notes:

(1) Case study provided by Catalyst Mediation Ltd: www.catalystmediation.co.uk.