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24 June 2017

Mediation

Tag(s): Business, Leadership & Management
When I was appointed Chief Executive of NXT plc in 2000 and raised £29 million in the City the first task was to build up the team. We had excellent scientists and engineers but inexperienced sales people and we needed to change the culture from technology led to customer led.  Our HR function was outsourced and based on process. I decided to hire a professional HR Director and preferably one with sales experience. I asked a former sales colleague Nick Heptonstall, who ran his own very successful sales training company, to help me with the recruitment and he found an excellent individual, Clive Lewis. Clive had started in sales with Dixons and later transferred to HR with Kingfisher. He jumped at the chance of a director position with a quoted plc.

A few years later when our work at NXT was done we went our separate ways but have kept in touch. I have been amazed what Clive has achieved. He reinvented himself as an expert in mediation. He was one of the UK’s first HR professionals to train as a civil and commercial mediator and now specialises in mediating employment and workplace disputes. He has mediated hundreds of cases and has advised governments on how to apply the mediation concept. He is much in demand as a mediator and mediator trainer across a range of business sectors throughout the UK and Europe. In 2011 he was awarded the OBE for his contribution to the field of mediation and in 2012 was appointed as Deputy Lieutenant for Gloucestershire. Clive is a business psychologist and is the founding director of Globis Mediation Group.

Mediation in the workplace is growing in popularity as a dispute resolution option for UK organisations. The management of conflict at work is not easy and this is partly due to there being few practical tools to help. Executives spend 24% of their time in managing conflict. The formal processes designed to deal with workplace disputes including grievance procedures and employment tribunals are as much part of the problem as they are the solution. Over 250,000 cases go to the tribunals in England and Wales every year. 11.3 m days are lost owing to stress, anxiety and depression.

The world of work is changing fast and this also leads to more potential for conflict. In the last ten years or so we have seen the financial crisis and the challenges of globalisation and new technology. Computers and technologies have become both a blessing and a curse. Speeding up communication may seem of great benefit but it brings with it stresses as results are expected faster and whereabouts can be constantly tracked. The absurd idea that a person can work 24/7 is nevertheless a reality if the mobile is always on.

Long term security seems a thing of the past. My father worked for the same firm for nearly 50 years apart from the interruption of the Second World War. By the time I gave up full time work I had worked for eight different employers in 35 years and since developing a portfolio have enjoyed seven retained positions as well as numerous advisory and pro bono roles.
It is not possible to simply mandate good employee relations. We need a legal framework where the law and market work in harmony and common sense solutions are favoured. The best organisations foster good employee relations which in turn encourages loyalty from their staff, which is a commodity that can’t be bought. But even in the best organisations processes are required to deal with situations that go wrong.

It is estimated that conflict in the workplace is costing the British economy £39bn per year[i]. In the US this is a staggering $359bn[ii]. The business case for Alternative Dispute Resolution (ADR) is therefore partly to reduce some of this cost; partly to reduce the cost of untangling this conflict; and partly that a workplace with such processes in place will be a more harmonious one and assist the profitable endeavours of the organisation.

So what is mediation? Mediation is a process used for resolving disputes in which a third person helps the parties facilitate and negotiate a settlement. It is, in essence, a facilitated conversation. It is focused on the future rather than on attributing blame. It tries to concentrate on solving problems so that they don’t recur. The process usually takes one day although there will of course have been a period of preparation.

It is vital that the mediator is genuinely independent and is seen to be independent. Clive Lewis says that there are four key ‘non-negotiables’ that relate to the mediation process.
  1. Mediation is voluntary in the sense that it takes place as a result of the parties agreeing to the mediation process. It cannot happen if one or more of the parties refuse to participate.
  2. Mediation is non-binding unless and until agreement is reached. Until this point, parties may walk away from the mediation at any time. A party’s statutory rights remain intact throughout the mediation process.
  3. The mediator is a neutral person who is there to assist the parties in their negotiations. The mediator provides a cool head, impartiality, process management, encouragement, optimism, and above all, brings hope to situations that may seem hopeless, whilst always leaving the problem and the decision to settle it in the hands of the parties.
  4. Mediation is private, conducted without prejudice and with total confidentiality. Should the conflict remain unresolved and the dispute referred to the court for resolution then the content of the mediation cannot be discussed.
Mediation works because, unlike other dispute resolution processes, it fully addresses all needs, including one of emotion. Whilst the opportunity might be given to discuss aspects such as injury to feelings in the litigation or grievance process, the opportunity is rarely given for the disputing parties to discuss emotional issues in detail with the judge or indeed each other. In an employment tribunal, where the employee wins the tribunal claim, although a judgement may take account of the emotional effect that the dispute has had on someone, it is unlikely to result in full closure for the ‘winner’. Issues probably still exist between them and their former employer about how they felt as a result of the way they were treated.

We can see that there are three ways to attempt to resolve a dispute.
  1. Power. The line manager simply uses their authority to force a conclusion. There may be occasions when this is justified as in matters of management of safety or other high risk factors.
  2. Rights. There has been a huge build-up of employment rights in legislation and individuals can now use some of this as a bargaining tool to get what they want. For example a person might use their gender or race to state that their rights have been violated or not considered.
With both of these methods the result is a winner and a loser, or even two losers. Victory in a tribunal might be Pyrrhic. In a legal resolution the costs of legal fees may outweigh any financial reward.
  1. Interests. The third way is to seek out what people really want and in so doing we may find a mutually satisfactory result where both parties can be winners.
ADR and mediation are firmly embedded in dispute resolution rules. Regulators insist on it as a potential opportunity for dispute resolution.

You might think that people in the legal profession would feel threatened by the growth of ADR. After all their rich fees are at stake. But there are high profile examples of both barristers and solicitors who have switched to be full-time mediators. Their lives have been changed by the experience of being mediators and contributing to the resolution of the needs of both parties. As a litigator their duty is to their client even if they know or believe them to be in the wrong. As a mediator their duty is to both parties and to achieve a result by conciliation, not confrontation.


Source: How to Master Workplace and Employment Mediation Clive Lewis OBE DL  Bloomsbury 2015

[i] L. Burns, ‘An independent approach to resolving conflict in the workplace’ HR magazine, 2012.
[ii] G Winfrey, ‘The Shocking Cost of Workplace Conflicts’ Inc., 2014




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