HUMAN LAW MEDIATION

Employment gears to mediation.

"With tribunal costs on the increase it's critical that workplace disputes are resolved before they get to Court. " So starts the article in Personnel Today which looks at the cost to business of work place disputes.  I was asked to contribute to present the mediation side of the argument.

My view is that people at work have become increasingly process-driven and have lost the confidence to deal with things on their own.

Mediation is becoming increasingly popular because, unlike arbitration where an expert third party makes a judgement on a situation, the process is about two parties coming to an agreement with the help of a trained facilitator. And at a cost of around £750-£850 a day to hire an external mediator, it offers employers much better value for money than going all the way to tribunal.

I think one reason why mediation is not used more widely in employment disputes is because there is no compulsion for companies to try it.

But in civil disputes, such as divorces, and commercial grievances, the law compels the parties to try mediation unless there is good reason why they can't. It involves bravery and for the two sides to be open and frank and to want to come to a workable solutions.

With the government pledging an additional £37m to Acas for additional mediation and related services over the next three years, it look as if more employers will be encouraged to give mediation a go.

There is too much emphasis on process and law in employment disputes; Mediation is one way to cut through this.

We're encouraging HR professionals to take a close look at mediation and to keep employee disputes out of Court.  Our recently published White Paper (free to download from the Human Law Medaition wesbite)  - Keeping Away from Employment Disputes and Court Room Battles - provides a Guide on how to approach workplace disputes and a full exploration of all the options available.

The trend is with mediation but there is a problem of over-population

The Law Society Gazette has just quite good article dealing with mediation which gives me a mention together with some of the leading players in the UK.

"Mediation is still in its relative infancy in the UK, despite alternative dispute resolution (ADR) being promulgated by the Woolf Reforms in 1999. More recently, however, there has been renewed emphasis on the method, largely in response to client demand, with the introduction by the Ministry of Justice of a National Mediation Helpline to increase awareness and access to mediation for the general public, and the creation of the Civil Mediation Council (CMC).

Last April the European Parliament approved a directive to encourage mediation for cross-border commercial disputes. In May, two of the country’s leading lawyers, Sir Anthony Clarke, Master of the Rolls, and the Lord Chief Justice, Lord Phillips, both gave separate speeches calling for greater use of ADR and mediation in particular.

In 2007 there were 12,050 calls to the National Mediation Helpline, of which 1,632 were referred to mediation providers. Some 774 cases led to mediation, of which 510 successfully settled – a rate of 66%.

Ironically it could be the economy that provides the best marketing campaign. Cash is king during tough times and businesses will fight over smaller sums of money. Mediation is speedy and cost-effective.

‘I certainly wouldn’t recommend anyone charging headlong into mediation alone,’ observes Justin Patten, solicitor and founding member of Human Law Mediation. ‘I still have my legal practice and I do training as well as mediating. The key is to have complementary skills and complementary forms of income. Any solicitor going into mediation should do so with their eyes open.’

But just how easy is it to combine a legal practice with a career as a mediator? ‘Very tricky,’ concludes Stephens. ‘You have to make a choice where you do your marketing, as there are only 24 hours in a day. But it is possible, particularly if you are in a specialist legal area, where it is desirable. As adjudicator you need current expertise and you need to be active in your field.’

Mediation training can benefit more than just mediators. Patten admits he is far better at handling client negotiation as a result of his mediation work. ‘You can focus far better on people’s motivation. In litigation, you focus just on your client’s interests, but you learn to look at the bigger picture. It makes you a better solicitor.’

One might think there is a conflict between being a lawyer, where the object is to generate fee income, and conducting mediation, where the goal is to seek early resolution and save costs. Not so, say lawyer-mediators.

McCarthy explains: ‘As a claimant lawyer running a business, you deal with cashflow and profit. Mediation means you get the cash in straight away, so insurers like it and it benefits your cashflow, while a trial can be costly for you as a lawyer and you are unlikely to be properly rewarded, which affects profit. So mediation makes sense.’"

Some observations:

1 The force is with ADR and mediation but for would be mediators be careful about entering the profession. It is very competitive and will get more so. Like any jurisdiction there are simply too many mediators going for too little work and as the article points out anyone can qualify as a mediator.

2 I think the key benefit o use of mediation is complementary skills. It does enhance comunication skills.

3 Recession times will lead more demand of mediation.

HR professionals seem to get mediation

Having just attended the CIPD Conference in Harrogate, Yorkshire it seems clear to me that the HR Profession is on the cusp of embracing mediation in a significant way. The opportunity to avoid disputes at an early stage due to the high success rate of mediation seems quite an incentive and from the number of ADR providers there and what some of the people were saying there is clearly an interest in mediation.

Against this background it may be worth HR Professionals attending a  one day workshop outlining how mediation will impact you and your organisation and will assist you in embracing the mediation process to allow you to be ahead of the game in the future.

It is withIDS - Income Services on Tuesday 14th October.

Mediation in schools - The skipping of a generation

Peer mediation is a conflict resolution tool that schools can use to help children sort out some of their problems on their own.

In this programme, peer mediation expert Gwynne Wilson Brown visits Kingswood Primary School in south London to see how their programme is going.

Gwynne meets up with learning mentor Sarah Harris and they look at a video they filmed when they were first setting up the scheme, discussing selection process. Through the rest of the day, we see:

• A top-up training session, where pupils hone their listening, empathy and trust skills
• Mediators putting their skills to the test and trying to resolve a dispute between two young children
• Mediators from a local secondary school running a workshop for Year 6 pupils

For Kingswood, the road to building their current team has been long and sometimes hard, but they now have a successful and effective group.

Please see link.

It is intriguing because in my experience many lawyers remain fearful of use of mediation but here you are beginning to see mediation being used at a younger level.