Despite the increased interest of mediation within employment lawyers, human resource professionals and their clients, there is still resistance to the use of mediation.
A lot of this can be underpinned by ignorance or lack of experience in use of mediation. One leading employment lawyer told me that he would like to refer matters to mediation but the clients are very resistant.
In addition, there is still a lack of legal incentive to use mediation. The Gibbons Review does represent a wasted opportunity to introduce mediation, but that may change. Around the corner I could see legal incentives introduced to encourage mediation, but that will take time.
The fundamental reason for the employer to consider mediation is that represents an opportunity for the firm to avoid Employment Trununal proceedings.
In 2008/9 for Tribunal Claims and costs awards, the maximum award was£25,000 with the average award £2,470. The problem was that only 0.2% of Tribunal rulings included a costs awards and even that was low. Even if you do get a costs award against a party it is not likely to cover all the legal costs incurred.
As a consequence irrespective of the merirts of the case and how well either the employer or employee fights it, there is every incentive to settle cases and avoid full blown Tribunal claims and legal costs which generally will not be recoverable..
According to CIPD, employers whose HR specialists are trained in mediation techniques have 50% fewer Employment Tribunal claims than those who do not offer such training.
Bringing in somebody entirely neutral to act as a sensible guide to the negotiation process can be an effective means of resolving dispute.
An employer who uses mediation as one of its tools puts itself in a stronger position with its employees both to identify unreasonable practices and to provide a non-contentious means of resolving disputes.
A mediator can crystallise the problems within the firm before problems become too inflammatory and the case is polarised.
For more information on the benefits of mediation, please click here.
Justin Patten, Mediator