East Sussex County Council's decision to use mediation to sort out workplace disputes came out of a casual conversation. Leatham Green, the council's assistant director of HR was talking to Tony Watson, a local Unison official, who had used mediation in the past and described how the process worked.

 

At the time the council was dealing with around 200 informal grievances a year, with a significant proportion of these turning into formal grievances. Some were taking three or four years to resolve, damaging working relationships and taking an enormous emotional toll on the employees concerned and their families. The financial costs were also high. Disputes that ended up in an employment tribunal were typically taking up around 32 days of senior managers' time at a cost of around £30,000. "I thought that there had to be a better way of dealing with conflict in the organisation which addressed the issues more quickly," says Green.

He began looking at the possibility of using mediation. A project team made up of Watson and Green, other senior members of the HR team and the head of legal services worked out the details, and in 2007 East Sussex launched a mediation service.

 

To keep costs down and make sure that mediators understood how the organisation worked, the council decided to run most mediations in-house. It uses external mediators only in exceptional circumstances - usually when all the available internal mediators have some connection to the disputing parties and cannot approach their task with total neutrality.

 

Initially, just four people - Green, two of his HR colleagues and Tony Watson - attended a five-day training course provided by employment mediation specialist Globis and validated by the Open College. After passing a practical and theoretical exam at the end of the course, the four became accredited mediators. They then shadowed experienced mediators in other organisations to build up their confidence and understanding of mediation further. Finally, they began offering their services within the county council, at first mediating only in relatively straight-forward disputes, and gradually taking on more complicated cases.

 

The mediation team has grown since 2007, its members going through a second training and accreditation process, this time provided by the Centre for Effective Dispute Resolution (CEDR), an international, not-for-profit organisation. But four of the 16 individuals who trained as mediators decided that this role was not for them. "They just didn't feel able to do it," says Green, who describes mediating as the most challenging work he does.

 

"The process is quite straight forward but remembering that you are not there to impose a solution, while suspending judgment and acting as a sponge for a huge amount of emotion, can be difficult," he adds.

East Sussex County Council's mediators always work in pairs. So once an employee has agreed to try to resolve a grievance through mediation, the council will allocate a lead mediator and an assistant. The employee can accept those individuals or reject them, in which case alternatives will be found.

 

The mediation itself usually starts with the mediators holding meetings with each of the parties, generally meeting the person who has brought the grievance first to establish exactly what he or she is aggrieved about. Each party then signs a pre-mediation agreement. This states that:

• they are entering mediation voluntarily
• the process is confidential
• no information provided by either party during the mediation will be used in any future legal claim.

On the day of the mediation, which always takes place on neutral ground (usually a hotel), the two parties deliver opening statements setting out their position and what they are hoping to achieve through the mediation. Aggrieved parties can deliver this statement themselves or ask someone else to do this on their behalf. This can be their lawyer, partner, trade union representative - or anyone else they choose. Unlike hearings held under formal disciplinary and grievance procedures, there is no bar on who they can bring to the mediation.

 

After the opening statements, the two sides retreat to private rooms, while the mediators go back and forth, trying to bridge the differences between them. If the mediation has been successful up to this point, there will then be another collective meeting where final terms are agreed and the two parties sign a written agreement. While this document is not necessarily legally binding, it provides a symbolic gesture that the two parties have reached agreement.

 

If the deal says that the aggrieved employee will leave the organisation with financial compensation, lawyers for the two sides will turn that informal agreement into a formal settlement agreement. But if the mediation results in the employee returning to the workplace, the mediators will hold follow-up meetings with the two parties after six weeks, three months and six months. This enables them to check that the agreement is holding and identify any emerging problems that need to be addressed.

Originally, the local authority used mediation only to settle grievances brought by employees and not disciplinary cases. However, once a culture of resolving conflict through mediation took hold, it became difficult to justify the distinction between the two kinds of cases, and the council has now begun to mediate in disciplinary cases.

 

The organisation still has traditional policies covering disciplinary and grievance issues, as well as those linked to performance, attendance and restructuring. But all these policies now refer to mediation. The same goes for contracts of employment, which state that mediation is the council's preferred way of dealing with workplace conflict.

 

The key word here is "preferred". Employees do not have to accept mediation and even if they do, can opt out of the process at any stage and revert to a formal procedure. Green gives the example of the council's grievance procedure, which at the time he spoke to HR-inform consisted of three stages, though the organisation was consulting its recognised trade unions on reducing those to just two stages. The formal procedure interacts with mediation in the following way:

 

After efforts to resolve a grievance informally have been exhausted, the employee's allegations will be investigated by a manager. If the employee is not happy with the outcome of this investigation and decides to appeal, he or she will be offered the chance to have the matter mediated instead.

 

If the individual turns down the offer of mediation, the director or assistant director of the relevant department will hold a hearing under stage 2 of the grievance procedure.

 

If this hearing does not resolve the dispute, the employee will again be able to choose between two alternatives: mediation or a chance to go on to the third and final stage of the formal grievance procedure.

 

The final appeal under this procedure is to the county council's elected members. If the employee is unhappy with their decision and is considering bringing a claim to an employment tribunal, the council will - even at this late stage - offer mediation as an alternative.

 

The same process applies to all East Sussex' employment polices and procedures. They remain in place but refer to the availability of mediation at each stage.

According to Green, mediation has transformed employee relations across the organisation - a view supported by the statistics. The council handled 44 formal disputes involving its non-schools workforce in 2006/07and 59 the following year. But by November 2013, the organisation wasn't dealing with a single formal grievance. That is not so much because it mediates high numbers of disputes but because managers and trade union stewards have learnt how to use facilitated conversations to resolve disputes before they escalate. Some of those conversations result in formal mediation - but many do not.

 

The impact of mediation on tribunal claims is less clear-cut. The local authority has never had to defend many claims, though one year the number reached 30. Currently there are around six claims a year - a modest number for an organisation with around 15,000 employees.

 

Mediation cannot be used in every situation. East Sussex County Council does not use it in cases involving allegations of fraud, child protection or other criminal conduct.

 

But the council has found that in most other situations mediation can resolve conflicts quickly and deliver outcomes that are acceptable to both sides.

Alex Young, a barrister at 7 Bedford Row, gives the following tips to employers thinking about introducing mediation.

 

Do:

• consult with employees, either individually or collectively, prior to introducing a mediation scheme, to ensure they regard the scheme as genuine and impartial
• pay particular attention to how the mediator will be paid. If the employer is to shoulder the entire cost, make sure that all concerned understand that the mediator's remuneration does not depend on the outcome
• take legal advice before embarking on a mediation as not every case will be suitable and, as with any settlement, there may be good reasons why settlement should only be reached on certain terms or by certain methods. In almost all employment cases a settlement will have to comply with certain statutory provisions in order to be legally binding
• take legal advice on the extent to which the outcome of a mediation may be admissible in any subsequent legal proceedings bear in mind that there is no 'one size fits all' solution. While mediation is often effective, it can sometimes introduce unnecessary extra cost and complexity to workplace disputes.

Don't:

• impose a mediation scheme unilaterally without prior consultation: it needs to have legitimacy in the eyes of the workforce if it is to stand any chance of success
• allow the scheme to become overly complex or time consuming
• agree to engage in mediation in every single dispute. Ultimately, mediation depends on the willingness of both sides to compromise, but in some cases compromise will be almost impossible because of the attitude of the employee, the employer - or both.

You might find the following areas of the site helpful:

• Conciliation and mediation - employment law information
• Mediation policy - downloadable model document
• Settlement agreement - downloadable template and drafting guidance