10 years ago ACAS and the CIPD got together to produce a guide on using mediation to resolve workplace issues: ‘MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES’. It may be 10 years old but this remains in my view one of the best simple guides available and is an excellent starting point in particular for employers considering using workplace mediation.
The guide concludes with a list of 14 good practice points on introducing workplace mediation. I think this is an excellent summary and is helpful not just to repeat but each point is worthy of expansion. So I wrote a series of posts for Linked In taking each point in turn and exploring them in a little more depth. Below is all posts combined into one (rather long!) blog. If you want to see the guide in full it is available on the ACAS website at https://www.acas.org.uk/mediation-an-approach-to-resolving-workplace-issues
Good Practice Point 1
“Mediation has many potential benefits for the organisation – for example, reducing the stress involved in using formal procedures and improving relationships.”
There is no doubt that using mediation to resolve relationship conflict has major benefits for the organisation. Anyone who has been involved in a formal process will know they take up a lot of time, cause considerable stress to those involved, pull in those around affecting the wider team, cause the rift to widen and are backwards focused rather than looking forwards. Mediation on the other hand looks to find a way forward that works for everyone.
So there are clear benefits for the people involved, though these may be difficult to measure – you can think of them as intangible benefits. However, what is sometimes neglected is that mediation has quantifiable tangible benefits. What would be your estimate of what the average grievance costs your company? It is probably more than you think. You need to take into account the time cost of all the people involved, plus any additional costs like cover if someone goes sick, and if things escalate your legal costs, tribunal costs etc. Some years back East Sussex County Council analysed their many grievance cases and worked out an average cost per grievance of £18,000. This is at least 10 times more than the cost of a typical mediation.
So the benefits are twofold – mediation is a less painful option for the people involved but also a more cost efficient solution for the organisation.
Good Practice Point 2
“Mediation is not a universal remedy for conflict between individuals and there are some situations where it will not be suitable – for example, if an individual bringing a discrimination claim wants it to be investigated.”
I like the emphasis in this point – it suggests that mediation should be considered unless it is not suitable. I agree and this aligns with the guidance to employers in ACAS’s ‘Code of Practice on Grievance and Disciplinary procedures’. The very first sentence in the Grievance section states: ‘If it is not possible to resolve a grievance informally employees should raise the matter formally’. Clearly there are informal options other than mediation but mediation is one of the principal tools of informal resolution.
Yet far too often I fear that the formal approach is the default rather than the exception. As such it can mean that a formal grievance is used when unnecessary and inappropriate, potentially resulting in worsening the issue. A formal grievance will focus on what has happened and establish on the balance of probabilities whether the concern raised is upheld and what actions if any are necessary. This may be appropriate in some cases for instance the example given in Good Practice Point 2. However it is inappropriate in many cases, especially when the conflict is relationship based. These issues are rarely black and white but are often caused by miscommunication, misperception, lack of clarity and clash of personalities. Resolution will only be achieved by helping those involved understand how the issues have arisen and agreeing how to ensure the situation can be better going forward – mediation helps achieve this, formal grievance doesn’t.
Good Practice Point 3
“Mediation is a voluntary process and should only be used where both parties are willing to try to resolve their differences in this way.”
Workplace mediation ‘success’ rates are generally quoted as being in excess of 90%. There is much to be said on what ‘success’ in mediation means but let’s accept that the great majority of people who go through mediation find it benefits them. One of the key reasons for this level of success is the voluntary nature of the process. No-one should be forced to do mediation. It should be their choice based on having sufficient information to make that choice. If they do choose mediation then they are already thinking about wanting to find a way forward – hence they have a mindset that makes a successful mediation far more likely.
However, mediation is not an easy option. We are asking people to sit down and talk with someone that they have a major issue with and talk about something which is very painful. It is far easier to get someone else to look into it – hence the attraction of the grievance process. If we add that mediation is voluntary employees may naturally be reluctant to take the option. Hence it is critical they are adequately supported in making the decision. Talking to a professional mediator will help them understand how it works, how they will be supported and address any objections they may have. They can then make a balanced and considered decision. I fear that far too often employees are not given the option to consider mediation. Or if they are, when they are told it is voluntary they say no without really understanding how it might help. We need to be better at properly explaining options – and indeed potential consequences of the choices made. My suggestion is simple. Mediation should remain voluntary, but why not make it compulsory for the employee to consider the option of mediation and provide reasons why they are not choosing it.
Good Practice Point 4
“Confidentiality is a key element of mediation – anything said during the process should stay in the room and not be disclosed to line managers or HR.”
One of the main reasons mediation is so effective is that it allows the participants to explore what has gone on beneath the surface. A good mediator will work with the people involved to help them consider not just what has happened but why it has happened. This might mean talking about how the participants feel, what is going on for them outside of work and other personal aspects that they would not be comfortable to share without a commitment to confidentiality. Also participants want to be sure that anything they say can’t later be used against them in a formal process – only in this way can we have the truly open and honest conversation that is needed to move towards finding resolution. As such confidentiality is critical, so much so that mediator and participants are required to sign an Agreement to Mediate which specifically commits them to maintaining confidentiality.
There is a slight qualification on this point. Everything remains confidential unless all agree it can be shared. I always provide a debrief to the referrer after a mediation. In order to do this I will agree with the participants what is OK to share. In most cases participants are happy to share the Mediation Agreement itself. I encourage this as it can helpful for participants to have someone within the company who is aware of the content if they need to talk something through post mediation.
Good Practice Point 5
“There is no one best approach of mediation and the type of arrangements in place should suit the organisation and its culture. For some, an internal scheme is more appropriate, while for other workplaces external mediation may be the only viable option. Others may choose to use a combination of the two.”
It definitely makes sense for an organisation to give careful consideration as to how it uses a mediation approach. Good Practice Point 5 refers to choosing between internal and external mediation. This is certainly part of the consideration but not the only one. A mediation approach could encompass an escalating range of interventions – for instance:
Employees having their own ‘difficult conversations’ – whilst not really mediation at all it forms part of the approach as ideally employees should have tried to resolve issues themselves before needing mediation
Line manager support – the line manager (assuming employees in conflict are in the same team) holds a conversation with the two team members to help them talk through their issues
Line manager or HR mediated conversation / mini mediation – a more structured conversation by someone with training in the skills and process of a mediation approach. This is likely to be 1.5 - 2 hours.
Full mediation – either with a trained internal mediator or an external. Typically this involves pre=meetings and a full day of mediation
In terms of internal vs external mediation, only larger organisations are likely to have the option of internal. But even for larger organisations, having access to external professional mediators is important for a variety of reasons which will be considered in Good Practice Point 6.
Good Practice Point 6
“Some of the factors to take into account when deciding whether or not to opt for internal or external mediation arrangements include cost and the size of the organisation.”
Certainly cost is a factor – internal mediation is to all intents and purposes ‘free’. As such if you have no funds available for external mediation the choice is made for you. I struggle though to see how the size of the organisation is a factor when choosing internal or external mediation. There’s no doubt you are more likely to find internal mediators in larger organisations – so the factor is actually whether the you have access to internal mediation or not.
There are however other factors which I would argue are more significant. Firstly it is more difficult for an internal mediator to be independent, or at least to be perceived as independent. Having previously worked as an internal mediator as part of my HR job I know how employees can be sceptical of your supposed neutrality. An external mediator has true independence and if employees are concerned regarding the integrity of the process, using an external is a big advantage. The other major advantage of using an external is that you can access professional mediators who are likely to have more experience than your internal mediation resource. Internal mediators invariably do their mediation role as an addition to their ‘normal’ job. A full time professional mediator however is focused just on mediation and if they are managing to make a living doing this then they are presumably good at their job!
For organisations with sufficient resources the best model in my view is to have some staff trained in mediation skills so they can nip low level conflict in the bud but also have access to external professional mediators for more complex and entrenched cases.
Good Practice Point 7
“There are no strict rules on when mediation can or cannot be used – it can potentially be used at any stage in the conflict cycle, including after a formal dispute has been resolved to rebuild relationships.”
This is certainly true in my experience. I have mediated cases of entrenched long term conflict where the expectations of resolution are minimal but mediation has nonetheless been effective. However, it is very clear that the earlier in the conflict cycle mediation is used, the greater the chance of a good outcome.
Are there risks of using mediation too early? I guess if you use an external mediator there is a cost which you could argue was unnecessary if the level of conflict didn’t warrant it. But the risk is small, and all too often I’ve come across cases where the referrer thought the conflict was far less serious than it actually was – so better to err on the side of caution. It is not easy for line managers and HR to determine the level of conflict and therefore the appropriate level of intervention. This is the issue I tried to address through my book ‘8 Stages of Workplace Conflict’, providing a tool to analyse the situation and guide as to the level and options for intervention.
As mediators we often hear from participants that they wish they had tried mediation earlier, particularly if they have been through a damaging formal process. So wherever possible we should be using mediation early – and if it doesn’t work, you can always go for a formal process after.
Good Practice Point 8
“Mediation is most effective when used in the initial stages of a disagreement in the workplace, before the parties become too entrenched in their views.”
This aligns with the assertion I made in my comments on Good Practice Point 7, that the earlier in the conflict cycle mediation is used, the greater the chance of a good outcome. Yet I sometimes hear that the ‘situation is not serious enough for mediation’ which puzzles me. Surely if mediation is an effective method of resolution why wouldn’t you use it as early as possible?
Part of the solution is to think of different forms of mediation. For instance, for a one off issue based around a misunderstanding a line manager could have a conversation and use a mediation style approach to nip the issue in the bud before it escalates. Another ‘level’ might be a trained person, perhaps HR, having a mediated conversation – or ‘mini mediation’ with the people involved. These are both lower level interventions than full mediation. Even in full mediation you can see ‘levels’ – a more serious case might demand an external professional mediator rather than in internal mediator.
So mediation is not one single ‘thing’. It exists in varying forms and levels. The key is to have the appropriate type of mediation intervention. Even in the very early stages therefore, the principles of mediation can be applied without necessarily having to use the full mediation approach.
Good Practice Point 9
“Some workplace disagreements are particularly suitable for using mediation – for example, relationship breakdowns and some bullying and harassment cases.”
This point relates to a commonly asked question – for which situations is mediation suitable and which is it not. The ACAS guide lists out some types of issue for which in their opinion mediation is well suited as an appropriate intervention. I wouldn’t disagree with any of their list but I would go further and say when a workplace disagreement needs to be addressed, is there a good reason why we would not use mediation?
My guess is that there are relatively few situations where mediation would not be worth trying. The guide lists some situations and I would broadly agree with most, for instance if you need a clear right / wrong decision or a manager is asking someone else to mediate as a way of avoiding their own managerial responsibilities. However, some could be used as an excuse for not mediating – the guide mentions if one side is being completely intransigent. I’ve often ended up mediating cases where the starting point was a refusal to mediate and entrenched positions. This is where having a proper discussion with the mediator will help. The mediator can explore the intransigence and work to overcome objections.
There will be cases though that are not right for mediation – or at least not right at that point in time. I have on occasions advised that we should wait as the participants are so caught up in the past and what has happened that they are not able to put focus on the future. Once emotions have settled they may be in a better place to do this.
Good Practice Point 10
“Setting up mediation arrangements involves setting aside an ongoing commitment in terms of time and resources.”
I’m assuming that this particular point is referring to an organisation setting up a mediation scheme within the company. I’d agree that if you are looking to introduce a mediation process and in particular if you are running an in-house mediation scheme then it will certainly demand time and resources on an ongoing basis.
As such it means a scheme needs to be properly planned, analysing the potential benefits and risks, identifying resources needed and key stakeholders, agreeing the process to be followed, determining a communications plan, deciding the appropriate model – internal / external / hybrid, and several other factors. In my own experience of introducing a mediation scheme into a large organisation, one of the most critical factors is having the backing of senior management as opposed to being a ‘HR initiative’.
It is also worth noting though that many organisations use mediation without having a scheme, policy or much at all written down, other than perhaps a mention in their Grievance policy that informal means should be tried first. It can still work – if you have a case where you think mediation would be appropriate you can access an external mediator and they will do it for you. So you don’t have to go through the effort to set up a big scheme – just call a mediator!
Good Practice Point 11
“It is vital that any organisation introducing mediation gains buy-in for it from employees, managers and trade union and employee representatives.“
It’s an easy mistake to make when introducing a mediation scheme into an organisation. You focus on the process aspects such as what cases should be referred, who will co-ordinate, how many mediators do we need, what training should we choose etc, and don’t put enough emphasis on the influencing of key stakeholders.
When preparing to introduce mediation a key piece of analysis is who are the key stakeholders in your organisation for this change. This will vary depending on the organisation – if you have a strong union representation for instance then the unions will be critical. But in all organisations buy in of the senior management is key. So you need to develop a strategy to influence the stakeholders once you have identified them.
This doesn’t finish once the scheme is introduced. You need to cultivate the continued engagement and support of key stakeholders by communicating with them, feeding back results and involving them in reviews and further development. In particular, demonstrating success by whatever criteria you have established is critical.
Good Practice Point 12
“Mediation arrangements need to be promoted across the organisation and managers encouraged to use them.”
Back in my days of corporate employment I set up and ran a mediation service for a FTSE multinational. One of the biggest learnings from that time was the need for an effective communication strategy.
When workplace conflicts occur, typically the first person to become aware there is a problem (other than the participants themselves) is the line manager. The challenge for that manager is to know what options are open to them and how to choose between them. It is critical therefore that they are made aware that mediation is available. But to work effectively the managers not only need to know mediation is an option, they need to know what mediation is in the first place and when it might be appropriate to use it. So a comprehensive communication plan is required to generate awareness, not just for managers but the whole organisation.
The communication process needs to continue once the scheme is up and running. In particular feeding back success stories is important to gain credibility and ensure the option is give proper consideration. Ideally, use of mediation should be built into employee / manager training programmes so new employees / managers are made aware of it at an early stage.
Good Practice Point 13
“If launching an internal scheme, mediators should be drawn from across the organisation and trained and supported in their role.”
Let us first of all address the suggestion that mediators ‘should be drawn from across the organisation’. The implication is that we are talking about larger organisations and good practice would be to have representation from different areas of the business. The primary benefit of this is that it means you are more likely to be able to find mediators who are not linked to mediation participants and therefore are perceived to be more independent. Whilst I don’t disagree with this, I would also suggest that it is more important that the mediator is trusted as being impartial by both participants. Therefore that does not rule out that one or both may work with / be known to the mediator. As an internal mediator, given my position and length of service, several mediation participants knew me or had worked with me, but trusted me sufficiently to be independent.
The second part of the good practice point sounds as though it should be self evident. Of course we need to train and support internal mediators. However, one of the reasons internal mediation schemes fail is that the initial enthusiasm and engagement around training and launch can fade away. This may mean that mediators get less support than they should do as time goes on, especially if they are not getting many cases. So as much support (or more) needs to go into maintaining the scheme as setting it up in the first place.
Good Practice Point 14
“Evaluating a mediation scheme can be more sensitive than the evaluation of other company policies because of the confidential nature of the process.”
It is certainly true that in undertaking any form of evaluation of an individual mediation or the mediation scheme as a whole, you need to take account of the confidentiality. However that should not be a major barrier to carrying out the evaluation. For me the key point is that for the scheme to be successful evaluation needs to happen. There should be feedback on the process and the mediators themselves, with regular review and update to improve processes and for further development of mediators skills. Indeed, the ACAS guide does cover the subject of the need for evaluation and how to go about it well. So it is puzzling why the key point focuses on the sensitivity angle.
As this is the final post in this series I wanted to conclude with a general comment. The 14 key points and the guide itself are an excellent basis on which to build your efforts to introduce mediation into an organisation. But there is no perfect answer. Every organisation is different and what works for one company may not work for another. The main point is that you make the commitment to the principle of mediation as an integrated part of your overall approach to supporting and engaging your employees for the mutual benefit of them and your organisation.
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