What does Mandatory Mediation mean for the workplace?

Mandatory mediation is looking increasingly likely in Civil and Commercial claims particularly following the government's blueprint for major reforms to the civil justice system which proposes compulsory mediation for small claims of £10,000.

The discussion about the benefits or otherwise of compulsory mediation has gone on for a number of years.  The benefits have been made pretty clear and have ranged from saving costs, finding a more comprehensive and potentially commercial solution, repairing relationships and ensuring a sustainable agreement that people are bought into.  

The arguments to the contrary, however, throw up some knotty questions:

• If people are forced to mediate will they do so in good faith?
• Does mediation create just another strata of costly procedure?
• Is there a potential that compulsory mediation might impede access to justice where a decision needs to be made?
• Is there a danger of people being forced into mediation and bullied into reaching agreement?

On balance, however, the benefits seem to have been shown to outweigh the risks of compulsory mediation and this is because mediation is an inherently humane and, at the same time, commercial process.  During the course of the mediation, conversations are able to happen that address the drivers of people's position and behaviour, not just the behaviour itself.  People can connect with each other humanely (if they wish to do so) and there is room not only for honesty but, crucially, for people to take responsibility for their own behaviour without risk of reprisals.  Agreements are able to be made that might not make sense in the strict confines of legal "rights" and "wrongs" but do make sense for the people and businesses involved.  In short, it is an evolved, flexible, humane and highly commercial process.

So, if compulsory mediation is clearly such a good thing, why is it not part of our grievance and disciplinary processes?  Why don't we move to mediation instead of an investigation process particularly in view of how damaging those processes can be on relationships of the individuals involved.  Why don't we mediate instead of raising a grievance?  Couldn't mediation deal with some of the misunderstandings that arise prior to disciplinary action being brought?

The answer, like mediation itself is nuanced and starts with a hundred questions.  Because of the balances of power in the workplace, the questions of the process being entered into voluntarily comes up again.  The dangers of covering up unacceptable behaviour are important.  Impartiality of a mediator paid for by an employer can be a cause for concern.  Equally, small businesses may balk at additional costs of mediation.  On top of this, claimants may miss out on an uplift in costs if they do not bring a grievance.  Finally, the prospect of proposed changes in the ACAS code or legislation seem too great to even get the ball rolling.

However, get the ball rolling we must.  The ACAS report on the cost of conflict 2021 tells us that: 

• "Close to 10 million people experience conflict at work each year, with more than half reporting stress, anxiety or depression as a result."
• "an  [estimated] average of 485,800 employees resign each year as a result of conflict. The cost of recruiting replacement employees amounts to £2.6 billion each year"

Mediation, on the other hand, "is a way to mend relationships when there is a disagreement at work." ACAS website.  Having said that, the way to introduce it is nuanced and not necessarily about compulsion.  It is about integrating mediation and its practices at all levels of the organisation in very simple ways  through the employee handbook, training and small cultural adjustments that change the psychological contract with the employee and the employer from a mindset of grievance and disciplinary to early resolution.

We will be discussing this amonst other fascinating areas at Doughty Street Mediators' launch event "Mediation now: tools for tricky times" and you can book to attend here.  Details of organisational changes you can make internally can also be found in The 7 Principles of Conflict Resolution.