benefits of using mediation in your business · 4. mediation in business and employment law -...

BENEFITS OF USING MEDIATION IN YOUR BUSINESS

Report of UK Workshops held in March 2014

Published April 2014

This publication reflects the views only of

the author, and the Commission cannot be

held responsible for any use which may be

made of the information contained therein.

The Foundation for European Initiatives

40 Millias Close, Brough HU15 1GP

[email protected]

www.mediationskills.co.uk

The Benefits of Mediation for Small & Medium Sized Enterprises - UK Workshops Report

Contents

1. Summary 4

2. Introduction 11

a. Project Description and Objectives 11

b. Role and activities of TFEI in the project 11

3. Mediation and Small & Medium Sized Enterprises (SMEs) in the UK 16

a. An Overview 16

b. Mediation Use 17

4. About the Workshops 21

a. Workshop Approach 21

b. Creation of website 22

5. Outcome of Workshops 23

a. Workshop Delegate Profiles and responses 23

b. In-depth telephone interviews: Issues Raised 25

c. Best Practice Identified 29

6. Recommendations 31


APPENDICES:

1. UK Mediation Workshops

a. Promotional Leaflet: “Benefits of Using Mediation in Your Business”

b. Agenda

c. Trainer Biographies

2. EIRENE Company Questionnaire

3. The Use of Mediation within Civil & Employment Law - Prof. Andrew Goodman

LLB MBA PhD FCIArb FInstCPD FRSA Barrister and CEDR Mediator

4. Mediation in Business and Employment Law - Kenneth T Salmon MCIArb

solicitor in England and Wales and Eire and accredited mediator

5. The Benefits of Using Mediation in your Business – Maria Arpa, Director, The

Centre for Peaceful Solutions and accredited mediator

6. The European Code of Conduct for Mediators

7. Workplace Mediation: How Employers Do It – CIPD Report

8. Useful Web Links


1. Summary of the Report:

The EIRENE Project1 provides an opportunity to promote mediation as an extra

judicial system of conflict resolution, leading to the development of a communication

strategy with a European dimension and aims to promote the existence of a

European culture of Mediation through the design of effective and efficient

communication and awareness actions.

Following agreement between the Mediara and the European Commission, TFEI as

the UK Partner in the project, was tasked to undertake three (3) Workshops in three

(3) different geographical UK locations for small and medium sized enterprises.

The purpose of these (FREE to attend) Workshops (held in London, Manchester and

Leeds during March 2014) was to:

Impart knowledge and experience to the participants in order to increase

their knowledge of mediation to resolve disputes at an early stage (and

save money);

Provide interactive opportunities for SMEs to share their expertise and

experiences;

Raise awareness of the new Industrial Tribunal Rules and the implications

for SMEs in the UK; and

Provide a unique opportunity to access mediation information and to share

best practice in the European Union.

This report is informed by, and acknowledges, changes in legislation and ongoing

reviews of mediation procedures within the UK. Primarily focusing on the relationship

between mediation and dispute resolution in SMEs it also recognises the financial and

emotional implications of leaving workplace disputes unresolved.

1

The Project is approved by the Directorate-General of Justice of the European Commission under the Civil Justice Programme call of 2012 (JUST/2012/JCIV/AG/3420), and coordinated by the Andalusian Public Foundation Mediara, attached to the Ministry of Justice and Home Affairs of the Government of Andalusia.


The need to reappraise and evaluate current practices in the UK is driven by a desire

to influence the ways in which SMEs access services that may facilitate a greater

understanding of mediation as an efficient means of pre-empting foreseeable

disputes in the workplace.

The ACAS published report entitled Knowledge and Use of Mediation in SMEs (ACAS

2008) indicated:

‘7% of managers in small and medium sized organisations have used

mediation, and a further 56% have heard of it but not used it.’

In Resolving Workplace Disputes: A Consultation (2011) the UK Government outlined

its views concerning mediation noting:

There is evidence to show that where a problem has arisen that could not be

resolved by discussion between the parties (and that should always be the

first step), inviting a mediator – an independent and impartial third party – to

work with the two people involved can bring about a swift resolution of the

issue. 2

Mediation is not offered as a panacea, and there are some types of conflict

where it will not be suitable. However, when used appropriately, it can offer a

way to avoid the potentially destructive effects of drawn-out conflict.

(Mediation: A guide for trade union representatives (2010))

Recognising the voluntary nature of mediation – both the employer and employee

cannot be forced to accept a solution – it suggests that it is a useful means of trying

to resolve an issue after informal discussions have not resulted in resolution. The role

of the mediator in dispute resolution is to contribute to the development of a

business culture that seeks to resolve disputes without resorting to time-consuming,

legally binding and financially prohibitive measures.

2 Resolving Workplace Disputes: A Consultation, BIS The Department for Business Innovation & Skills, January 2011


The use of mediators by SMEs remains small by comparison to larger organisations

and yet SMEs make a substantial contribution to the economic well-being of the UK.

The use of mediation in SMEs reflects the current state of unease concerning what

mediation actually means and how it can prove beneficial to both employer and

employee.

To support the EIRENE project in the UK, and promote the availability of the

Mediation Workshops, TFEI created a new website http://www.mediationskills.co.uk

(The website contains appropriate reports, information and presentations relating to

the Workshops).

Following a detailed analysis of the results of the widely circulated “EIRENE

Company Questionnaire”, (provided by Mediara - APPENDIX ITEM 2) when

asked to identify ‘the best way to promote mediation among companies’ the

following preferences arose:

Conferences and workshops 25%

Television 20%

Social Networks 17.5%

Print Media 15%

Newspaper/Internet 12.5%

Radio 7.5%

Journals 2.5%

TFEI also identified the following strengths of particular combinations of preference

by choice:

1st choice

Conference/workshops and TV: 75%

2nd choice:

Social Networks/Conference workshops 58.3%

3rd choice

Newspapers/Internet/Social Networks 75%


A number of Workshop delegates took part in a follow-up telephone interview, which

lasted between 15 and 25 minutes each. The nature of these interviews reflected the

skills, comments and experiences of delegates. The purpose of these follow-up

interviews was to access and collate further information directly related to the

current and future position of the use and promotion of mediation in the workplace.

A number of innovative suggestions were shared considering the best ways to raise

the profile of mediation and SMEs. These may be summarised as follows:

Raising awareness at business centres, business focus groups and SME

umbrella organisations like the Federation for Small Businesses;

Through distribution of A5 fliers in Post Offices and Health Centres where

people are queuing or waiting for an appointment - it could be individually

aimed at stress relief (Health Centres) or in resolving workplace or domestic

disputes (Post Office, Citizens Advice);

Information and updates to be displayed on Workplace and Social Notice-

boards – including raising awareness campaigns that could be linked to

similar ‘campaigns’ often featured in television dramas;

Supplying information via professional bodies including The Institution of

Occupational Safety and Health (IOSH) and representative bodies directly

engaged in supporting specific fields of employment;

Managing Director promotional materials – email briefings on a regular

basis to interested parties. Linking mediation with emotional health and

safety as part of a behaviour-health/stress/safety at work campaign. HR

departments could promote mediation and what it means to all

departments in an organisation; and

Ensuring that mediation is embedded into the educational curriculum: this

would provide a long term solution if it was part of the school experience.

In the short term: Access to, and promotion by experts, professionals and

organisations such as TFEI and EU partnerships such as the EIRENE

project.


The development of mediation for SMEs was considered a forward looking process

although accessing information concerning mediation was mentioned as a defining

factor.

The lack of information on the Internet was cited as being an issue as was the

confusing nature of what mediation actually means. A website that could provide a

substantial amount of material, including links to other providers, was suggested and

could provide a means of source materials to interested SMEs and individuals.

Access to, and provision of, innovative training: Massive Open Online Courses

(MOOCs) could provide a means of accessing or developing online courses in the

field of mediation. Short courses could include, for example:

An Introduction to Mediation

Mediation for SMEs

What Mediation means and how it is used in the Workplace.

Modules could also be embedded in existing on-line and face-2-face courses in a

range of subjects not necessarily limited to business and workplace management.

Devoted to raising awareness of what is meant by mediation, these modules could

contribute to improving the available knowledge base.

Course materials, module inclusion and ‘thinking-out-of-the-box’ strategies will

contribute to ensuring that clearer definitions of what is meant by mediation are

developed. Comments concerning the use of confusing terminology and sector-driven

interpretations were made by a number of respondents. Courses in a wide range of

subjects could ensure that mediation needs are met through a greater understanding

of the use of mediation in many different situations. At present, there is little attempt

to define, understand and recognise the diversity and range of mediation initiatives.

A number of “best practice points” were acknowledged that might contribute to the

identification and promotion that could be used as “general principles” in mediation.

These included:


1. Identification and acknowledgement of transferable skills where an individual

may be able to recognise the importance of their experience of mediation in

the community as a useful addition to their working practice portfolio;

2. Examples where sharing “success stories” across networks within SMEs and

through associative activities including social networks, on-line community

forums and workshop participation have taken place;

3. The identification of SMEs where mediation has proved successful and

including them as case-studies in a practice-based guide to successful

mediation;

4. Recognising work already carried out by organisations in the UK including The

Centre for Peaceful Solutions 3 and The Civil Mediation Council (CMC) the

recognised authority in the country for all matters related to civil, commercial,

workplace and other non-family mediation.4 The CMC workplace mediation

provider registration scheme 5 is the main access channel for users of

workplace related mediation services in the United Kingdom; and

5. Promoting “The European Code of Conduct for Mediators” (See Appendix

Item 5), which sets out a number of principles to which individual mediators

can voluntarily decide to commit, under their own responsibility.

Recommendations

Specifically relating to the development of a “European Communication Strategy” and

after considering the evidence gathered in the UK, it is apparent that the complexity

of mediation processes and confusion over definitions across sectors may present an

obstacle to the development of such a Strategy.

The following recommendations are informed by and are intended to contribute to

the continuing debate concerning the nature and use of mediation and its

accessibility to SMEs:

3 The Centre for Peaceful Solutions, www.centreforpeacefulsolutions.org4 The Civil Mediation Council, www.civilmediation.org 5 The Civil Mediation Council registration scheme, www.cmcregistered.org


1. Clearer definitions of what is meant by mediation are required – the

terminology is often confusing and as a consequence means different things

to different people. Considered in a European dimension, additional clarity

needs to be sought concerning the terminology used. The diversity of

cultures, languages and access to information in the UK illustrates how

complex this issue is – it remains to be seen whether this could equally apply

to other countries within the European Union;

2. The relative cost of mediation needs to be clarified. Many SMEs need to

factor-in “time” as well as the financial costs involved in establishing mediation

systems and procedures. If SMEs also have to factor-in the adoption of a

“European Communication Strategy” time and financial arrangements already

spent on developing UK based procedures may require further analysis; and

3. Access to a “one-stop-site” for mediation information, shared experiences and

procedures will promote improved access to mediation services but may not

prove helpful in any attempt to promote a “European Communication

Strategy”.

--ooOOoo--


2. Introduction

2.a. Project Description and Objectives

The EIRENE Project, approved by the Directorate-General of Justice of the European

Commission under the Civil Justice Programme call of 2012

(JUST/2012/JCIV/AG/3420), and coordinated by the Andalusian Public Foundation

Mediara, attached to the Ministry of Justice and Home Affairs of the Government of

Andalusia, provides an opportunity to promote mediation as an extra judicial system

of conflict resolution, leading to the development of a communication strategy with

an European dimension.

The objectives of this project are: to deepen the understanding of mediation as an

alternative system of dispute resolution in the participating countries; to exchange

experiences and design a communication strategy of mediation according to their

needs; and mix and share methods and concepts.

The EIRENE Project aims to promote the existence of an European culture of

Mediation through the design of effective and efficient communication and

awareness actions.

2.b. Role and activities of TFEI in the project

During the first 6 months of the EIRENE project (January to June 2013) the EIRENE

UK Partner (The Foundation for European Initiatives (TFEI)) undertook a thorough

and detailed review of the activities ascribed to TFEI in the original project

application to test their validity/applicability with SMEs and professionals working in

the mediation sector in the UK.

It was found that a number of the activities described in the original application

needed revision to make them more applicable to the current mediation situation in

the UK. These revised new activities will have a positive impact on the wider project

partnership and enhance the outcomes of the project and make them more


applicable to SMEs throughout Europe.

A detailed, costed, UK Mediation Communication Strategy for the SME sector was

prepared for consideration, which was agreed by the project Promoter Mediara and

the European Commission Justice Directorate in December 2013. The following UK

mediation communication programme comes under the EIRENE project Work Stream

3. The description as indicated in the application suggested the following areas of

work:

1. The design and printing of advertising material for the project.

2. Subcontract companies in the European Mediation Day conferences and

seminars that will take place in the European mediation day environment.

The UK held a “National Mediation Week” in both 2005 and 2006. Each week was

developed at the instigation, and support of, the UK Government and included over

100 individual events around the UK with keynote speeches given by the

Government.

Events were attended by solicitors, barristers, mediators, mediation service providers

and several members of the judiciary, including the Master of the Rolls (a key figure

in the English judiciary). It was plain that many whose very raison d’etre is the

handling of commercial disputes were persuaded of the merit of mediation. At the

highest level, the British Government and the judiciary emphatically support

mediation.

The purpose of Mediation Week was to increase awareness of the significant benefits

that mediation can bring to all sectors of society and that irrespective of the

problem; mediation can resolve almost any type of dispute.

It also sought to improve knowledge and acceptance of mediation amongst all the

key stakeholders in Civil Justice, in particular, court users, the Judiciary, and the

Legal Profession.

Following an evaluation of the events it was decided not to hold another such


Mediation Week in the UK. TFEI suggested, at the initial EIRENE meeting in London

in April 2013 that a National single event, such as a UK Mediation Day, was not

appropriate and given the funding available it would not be a cost effective method

of reaching the small and medium sized enterprise sector. Following further

discussion with Mediara and the European Commission revised areas of activity were

agreed that should be undertaken to develop a more appropriate mediation

communications strategy for SMEs in the UK.

It has been estimated that 50% of organisations use mediation more frequently than

three years ago and that nearly 25% now use mediation, whereas they didn’t

previously.

Almost 50% of organisations see mediation as a way of avoiding the costs of

defending employment tribunal claims. There is no doubt that the use of mediation

for this purpose will increase as new rules set out by the UK Government require a

payment, in advance, of up to £950 to go to an Industrial Tribunal.

Around 60% of businesses have no experience of using mediation to deal with issues

affecting individual employees. This is despite the two National Mediation Weeks and

general publicity surrounding the use of mediation and undoubted benefits by the

Government and the mediation sector.

Cost is seen as the biggest single issue inhibiting the greater use of mediation by

SMEs.

Other issues include:

Lack of trust by employees;

Lack of understanding about the process;

Lack of interest by senior management; and

Difficulties in finding a mediator.

The vast majority of businesses use the mediation services provided by the


Government sponsored Advisory, Conciliation and Arbitration Service (ACAS)6, with

around 25% using a commercial organisation specializing in mediation7.

According to many businesses communicating the aims and benefits of mediation to

all staff is the single most important thing that could be done to promote its wider

use in the workplace.

Given the current fragmented state of the mediation industry in the UK and the

identified need expressed by UK business it was felt that TFEI should target the

allocated EU project resources on a specific sector of the business community in

order to make the most impact.

Large companies that have Human Resources Departments and ready access to the

legal profession will have the necessary financial resources to develop their own

strategies to deal with disputes.

However, small UK SMEs (up to 50 employees) do not usually have the financial

resources to seek legal advice and now that there will be charges to take a dispute

through the Industrial Tribunal system it is even more imperative that support be

given to this sector to encourage them to use mediation as cost effective method of

dispute resolution.

Therefore, the activities that TFEI was tasked to undertake in the UK were as

follows:

A: Undertake three (3) Workshops in three (3) different geographical UK locations for

the small and medium sized enterprises.

The purpose of the Workshops will be to impart knowledge and experience to

the participants in order to increase their knowledge of mediation to resolve

disputes at an early stage (and save money);

6 ACAS staff conciliated in some 68,000 employment tribunal cases, answered nearly 930,000 telephone calls for employment relations advice and played an active part in seeking to resolve over 850 collective disputes. (2012/2013)7 There are over 60 commercial mediation providers in the UK


The interactive workshops will cover in some detail:

o The “inhibiting issues” raised by business and ways to overcome them

(see above); and

o The new Industrial Tribunal rules and the implications for small

business.

The Workshop will be FREE to attend and lunch will be provided; and

Appropriate Guest Speakers will be invited to give presentations on various

topics of relevance.

B: Development and Production of mediation publicity material

To undertake appropriate activities to widely promote the Workshops; and

Following the Workshops to produce a Report that covers the issues raised

during the Workshops, the conclusions reached, best practice and general

guidance and advice.

The UK mediation communication strategy developed by TFEI addresses the lack of

mediation information provision to small and medium sized enterprises and ensure

that they are aware of where to go for such information, how to access it and the

immense value of using mediation techniques and tools within their own businesses.


3: Mediation and SMEs in the UK

3a: An Overview

This report is informed by and acknowledges changes in legislation and ongoing

reviews of mediation procedures within the UK. Primarily focusing on the relationship

between mediation and dispute resolution in SMEs it also recognises the financial and

emotional implications of leaving workplace disputes unresolved. The need to

reappraise and evaluate current practices in the UK is driven by a desire to influence

the ways in which SMEs access services that may facilitate a greater understanding

of mediation as an efficient means of pre-empting foreseeable disputes in the

workplace.

The Federation of Small Businesses (FSB) indicate that SMEs account for 99.9 per

cent of all private sector businesses in the UK, 59.3 %of private sector employment

and 48.1% of private sector turnover (2013). In the financial and insurance sector,

only 27.5% of employment is in SMEs. In the agriculture, forestry and fishing sector

virtually all employment (95.4%) is in SMEs (2013). 8

The current state of employment in the UK indicates that while there are

opportunities for growth, the sector continues to experience difficulties arising from

short term and temporary contracts of employment. It appears likely that changes in

employment law, particularly, but not only confined to part-time and temporary

employment, influences the employee-employer relationship.

The need for SMEs to adopt mediation and reconciliation strategies may contribute to

solving disputes arising from insecurity of tenure. Changes in the assessment of, and

access to, state welfare benefits continue to place additional pressure on lower paid

employees.

8 Federation of Small Businesses (FSB) Figures obtained from the Department for Business Innovation and Skills. Updated October 2013


The number of people employed on the statutory minimum wage (£6.31/7.70 EUR

rate) and the living wage (£8.80/10.50 EUR rate for London) can influence the social

well-being of these employees. The living wage, which is not a statutory

requirement, is based on the amount an individual needs to earn to cover the basic

costs of living in specific areas of the UK.

3b: Mediation Use

Knowledge and Use of Mediation in SMEs (ACAS 2008) indicated:

‘that 7% of managers in small and medium sized organisations have used

mediation, and a further 56% have heard of it but not used it.’

Conducted by ACAS and published as a research paper this survey found that:

‘the majority of managers thought mediation is only suited to large

organisations’

and that;

‘around two thirds of managers think mediation should only be used as a last

resort.’ 9

In Resolving Workplace Disputes: A Consultation (2011) the UK Government outlined

its views concerning mediation noting:

There is evidence to show that where a problem has arisen that could not be

resolved by discussion between the parties (and that should always be the

first step), inviting a mediator – an independent and impartial third party – to

work with the two people involved can bring about a swift resolution of the

issue. 10

The processes involved in making decisions concerning the introduction of an

impartial third party raised concerns as to the continuing role of trade union

9 Tim Johnston, Knowledge and Use of Mediation in SMEs Research and Evaluation Section (RES) Acas June 2008.10 Resolving Workplace Disputes: A Consultation, BIS The Department for Business Innovation & Skills, January2011


representatives. Formerly, employees were able to discuss workplace disputes in the

presence of their Union representative.

Both ACAS and the Trade Union Council sought clarification of their role in any

dispute requiring mediation. Previously published in Mediation: A guide for trade

union representatives (2010) ACAS and TUC had identified areas of interest and

concern regarding the development of mediation as a means of solving disputes.

This guide noted that mediation was a complementary process and:

‘not a replacement for trade union representation, and nor should it

undermine the valuable role of trade union representatives.’11

Furthermore, the guide noted similarities between trade union representation and

mediation ‘promoting good management and organisational culture based on

openness and trust while respecting the rights of individuals.’

Mediation is not offered as a panacea, and there are some types of conflict

where it will not be suitable. However, when used appropriately, it can offer a

way to avoid the potentially destructive effects of drawn-out conflict. 12

Previous research into emotional intelligence in the workplace emphasised the

importance of developing management practices that would lead to a reduction in

the percentage of employee-employer disputes. Promoting the ideal of an

Emotionally Intelligent Organisation Trein: A Guide for the development of the

Emotional Intelligence in Continuous Training (2007) proposed that:

‘through a combination of Trust and Respect, employees who are Emotionally

Intelligent contribute to the development and sustainability of an Emotionally

Intelligent Organisation.’13

11 Mediation: A guide for trade union representatives, ACAS and TUC, August 201012 Mediation: A guide for trade union representatives, ACAS and TUC, August 201013 TREIN, Guide for the development of the Emotional Intelligence in Continuous Training (KJ Osmond, Inveslan2007)


In terms of mediation, the focus of this research highlighted opportunities for SMEs

to manage change and resolve disputes through engaging in working practices that

enabled employees and employers to meet commonly agreed and clearly defined

objectives.

UK Government advice concerning mediation notes that:

‘it should not be used to solve problems that have to be formally investigated

(eg harassment or discrimination).’14

Recognizing the voluntary nature of mediation – both the employer and employee

cannot be forced to accept a solution – it suggests that it is a useful means of trying

to resolve an issue after informal discussions have not resulted in resolution. The role

of the mediator in dispute resolution is to contribute to the development of a

business culture that seeks to resolve disputes without resorting to time-consuming,

legally binding and financially prohibitive measures. The use of mediators by SMEs

remains small by comparison to larger organisations and yet SMEs make a

substantial contribution to the economic well-being of the UK.

The complexity of identifying when mediation is an appropriate work based strategy

is further compounded by different definitions of what is meant by mediation.

Organisational and strategic procedures often seek to place mediation within a

grievance solving procedure, where the outcomes of mediation are binding.

This presents a conflicting view of what is meant by mediation and may result in it

being presented as a win-lose solution and little different from legal procedures. In

this context, the impartiality of mediators, often full-time employees of the

organisation, may prove difficult to attain.

For example, UK Police Forces may engage:

‘a trained independent Mediator from within the Force to undertake the

mediation process’ 15

14 https://www.gov.uk/solve-workplace-dispute. [Accessed 17.02.2014]15 Merseyside Police, Fairness at Work (Grievance Policy & Procedure), August 2012


rather than an externally appointed mediator. If mediation is built on trust, this may

present problems if the mediator is a superior officer or under pressure to find a

solution in line with organisational policy.

Where mediation is used:

‘to assist in instances where the grievance is about attitude or behaviour, or

feelings of conflict’ 16

there is potential for it to be linked to performance and pay review.

The use of mediation in SMEs reflects the current state of unease concerning what

mediation actually means and how it can prove beneficial to both employer and

employee.

The need for further clarification, while enhancing the profile of mediation in the

workplace, is of primary importance. Without further guidance and improved levels

of awareness by individual managers, employees, lawyers and other interested

parties the need for further investment in both time and money for mediation may

prove difficult to justify.

The EIRENE Mediation Workshop sessions in three major cities in the UK raised a

number of issues that make a valuable contribution to subsequent sections in the

report.

16 Merseyside Police, Fairness at Work, 2012


4: Mediation Workshops

4.a. Workshop Approach

The development of a mediation workshop approach to raising the profile of the

relationship between SMEs and mediation arose from an identified need to provide

opportunities for the perceived project beneficiary groups to access the latest

information regarding mediation and SMEs.

The purpose of the Workshops was to impart knowledge and experience to the

participants in order to increase their knowledge of mediation to resolve disputes at

an early stage (and save money).

A copy of the Promotional Leaflet: “Benefits of Using Mediation in Your Business”,

the Agenda and the Trainer Biographies can be found at APPENDIX ITEM 1

In summary each workshop aimed to:

Impart knowledge and experience to the participants in order to increase

their knowledge of mediation to resolve disputes at an early stage (and

save money);

Provide interactive opportunities for SMEs to share their expertise and

experiences;

Raise awareness of the new Industrial Tribunal Rules and the implications

for SMEs in the UK; and

Provide a unique opportunity to access mediation information and to share

best practice in the European Union.

It also aimed to offer a unique and intense one-day workshop to address the lack of

mediation information provision to small and medium sized enterprises in the UK and

ensure that participants were aware of where to go for such information, how to

access it and the immense value of using mediation techniques and tools within their


own businesses. Potential participants could access this material and register for the

proposed Mediation Workshops as discussed in the following sections.

4.b. Creation of website

To support the EIRENE project in the UK, and promote the availability of the

Mediation Workshops, TFEI created a new website http://www.mediationskills.co.uk

(The website contains appropriate reports, information and presentations relating to

the Workshops).

The website will be available until October 2014 (6 months following the cessation of

the project in May 2014).

Over 1 million organisations/individuals in the UK have been targeted through

various social networks, general emails and newspaper advertisements.17

17 Newspaper Advertisements London, Leeds & Manchester circulation 943,000 plus LinkedIn Groups circulation 120,000 plus general emails 2,000.


5. Outcomes of Workshops

5.a Workshop Delegate Profiles and responses:

As a result of commissioning, advertising and holding three Mediation Workshops,

geographically located in London, Manchester and Leeds, delegates were asked to

complete an “EIRENE Company Questionnaire” (prepared by Mediara) (See

APPENDIX ITEM 3). A copy of the questionnaire is also generally available on the

“mediationskills” website.

Completed without personnel identification these questionnaires provided an

interesting range of expertise, experience and observations concerning the current

and future state of mediation in the UK.

Although difficult to summarise, the range, level of experience and prior knowledge,

background of participants was extremely varied, a number of interesting

observations were made. In statistical terms, workshop participants were as follows:

Age:

20-30 31-40 41-50 50+

16.60% 21.80% 25% 37.50%

Gender:

Male Female

37.50% 62.50%

Business Size:

Micro Small Medium Large

36.36% 13.63% 18.18% 31.81%

Sector:


Industry Services

5.26% 94.73%

NOTE: There were no representatives from Agriculture and Fisheries or from Construction.

Following further analysis of the data, and more specifically to the replies when being

asked to identify ‘the best way to promote mediation among companies’

[P.3] the following preferences arose:

Order of Preference of those whose completed P.3.

Conferences and workshops 25%

Television 20%

Social Networks 17.5%

Print Media 15%

Newspaper/Internet 12.5%

Radio 7.5%

Journals 2.5%

Closer analysis identified the following strengths of particular combinations of

preference by choice:

1st choice

Conference/workshops and TV: 75%

2nd choice:

Social Networks/Conference workshops 58.3%

3rd choice

Newspaper in Internet/Social Networks 75%

The least popular means of communication proved inconclusive although in

conversation they seemed largely dependent on individual communication

preferences.


Where participants suggested alternative means of communication [Other] the

following were suggested:

e-mail shots and internet;

Publicity in the workplace;

Recruitment Processes;

Case studies and cost benefit analysis;

UK TV Soap Dramas including Coronation Street and East Enders; and

Word of mouth.

Further suggestions arose through conversation, e-mail and telephone dialogues,

which informed the nature of the questions arising during in-depth telephone

interviews outlined in the next section.

5.b In-depth telephone interviews: Issues Raised

A number of delegates took part in indepth follow-up telephone interviews - calls

lasting between 15 and 25 minutes each.

The nature of these interviews reflected the skills, comments and experiences of

participants.

The purpose of these follow-up interviews was to access and collate further

information directly related to the current and future position of the use and

promotion of mediation in the workplace.

Issues Arising:

Difficulties concerning Definition:

It is apparent that definitions of mediation and its use in family and community

disputes and as a means resolving conflict may not always seem instantly accessible

for use in the workplace. A number of respondents commented that the workshops

had emphasised the ability of mediation strategies to enhance workplace


relationships. Viewed culturally, the success of mediation may depend on the culture

and knowledge of use. It was noted that mediation would not be suitable for cultures

where the outcome should be legally binding and reliant on a Win/Lose outcome.

Remaining Neutral:

The need to resolve issues without apportioning blame was recognised although

doubts were expressed as to whether any dispute could be resolved without

damaging a specific workplace relationship. For instance, how can a line manager or

boss remain neutral, how can an employee feel that they can trust the outcome of

the mediation procedure? The need for the mediator to remain as an independent

and neutral facilitator raised issues concerning the idealistic nature of some

mediation practitioners. Often, respondents commented on the difficulties of

maintaining independent neutrality when faced with the potential of engaging in

mediation.

Mediation Costs:

Mediation as a cost-saving alternative to legal proceedings was considered as a

relative saving as, in practice, mediation was not a free service. The organisations

that offered free mediation, including some health trusts, trade unions and police

forces, were seen as displaying a vested interest in the outcome. As successful

mediation depends upon trust, it was this element that was lacking in the current

employment market. The smaller the SME, the more difficult it was to remain neutral

or to adopt a ‘forgive and forget’ strategy once the situation had been resolved. The

example was given that if an employee shared a working space with the colleague

who has been involved in their mediation, it is really possible to move forward

without bias?

Beneficial Mediation:

Mediation was considered beneficial where it could be of use in settling disputes or

disagreements between employees where a Win/Lose result is not an option or


unlikely. In reality it is, however, difficult ‘to pretend that a disagreement never

happened’ especially if it involves a line manager and a member of their team.

Commercial reality and larger corporates often encourage a less than open approach

to solving disputes. The perception is that is ‘better to keep the job by keeping

quiet.’

Respondents also commented on the apparent division between how mediation may

be used in the private and the public sector. In public (not-for-profit) mediation was

viewed as more productive form of dispute settlements as the culture of these

organisations were perceived as more flexible and open to new forms of resolving

employer-employee disagreements. The public sector (not-for-profit NGO) was

considered by some respondents as an easier place to raise issues and to follow an

effective process involving mediation.

Raising the Mediation Profile:

A number of innovative suggestions were shared considering the best ways to raise

the profile of mediation and SMEs. These may be summarised as follows:

Raising awareness at business centres, business focus groups and SME

umbrella organisations like the Federation for Small Businesses.

Through distribution of A5 fliers in Post Offices and Health Centres where

people are queuing or waiting for an appointment - it could be individually

aimed at stress relief (Health Centres) or in resolving workplace or domestic

disputes (Post Office, Citizens Advice).

Information and updates to be displayed on Workplace and Social Notice-

boards – including raising awareness campaigns that could be linked to

similar ‘campaigns’ often featured in television soap dramas.

Supplying information via professional bodies including The Institution of

Occupational Safety and Health (IOSH) and representative bodies directly

engaged in supporting specific fields of employment.


Managing Director promotional materials – email briefings on a regular

basis to interested parties. Linking mediation with emotional health and

safety as part of a behaviour-health/stress/safety at work campaign. HR

departments could promote mediation and what it means to all

departments in an organisation.

Ensuring that mediation is embedded into the educational curriculum: this

would provide a long term solution if it was part of the school experience.

In the short term: Access to, and promotion by experts, professionals and

organisations such as TFEI and EU partnerships such as the EIRENE

project.

Accessing information:

The development of mediation for SMEs was considered a forward looking process

although accessing information concerning mediation was mentioned as a defining

factor. The lack of information on the Internet was cited as being an issue as was

the confusing nature of what mediation actually means. A website that could provide

a substantial amount of material, including links to other providers, was suggested

and could provide a means of source materials to interested SMEs and individuals.

Innovative training initiatives:

Access to, and provision of, innovative training: Massive Open Online Courses

(MOOCs) could provide a means of accessing or developing online courses in the

field of mediation. Short courses could include, for example:

An Introduction to Mediation;

Mediation for SMEs; and

What Mediation means and how it is used in the Workplace.


Modules could also be embedded in existing on-line and face-2-face courses in a

range of subjects not necessarily limited to business and workplace management.

Devoted to raising awareness of what is meant by mediation, these modules could

contribute to improving the available knowledge base.

Associative Initiatives:

Course materials, module inclusion and ‘thinking-out-of-the-box’ strategies will

contribute to ensuring that clearer definitions of what is meant by mediation are

developed. Comments concerning the use of confusing terminology and sector-driven

interpretations were made by a number of respondents. Courses in a wide range of

subjects could ensure that mediation needs are met through a greater understanding

of the use of mediation in many different situations. At present, there is little attempt

to define, understand and recognise the diversity and range of mediation initiatives.

5.c Best Practice Identified

A number of “best practice points” were acknowledged that might contribute to the

identication and promotion that could be used as “general principles” in mediation.

These included:

1. Identification and acknowledgement of transferable skills where an individual

may be able to recognise the importance of their experience of mediation in

the community as a useful addition to their working practice portfolio.

2. Examples where sharing “success stories” across networks within SMEs and

through associative activities including social networks, on-line community

forums and workshop participation have taken place.

3. The identification of SMEs where mediation has proved successful and

including them as case-studies in a practice-based guide to successful

mediation.


4. Recognising work already carried out by organisations in the UK including The

Centre for Peaceful Solutions 18 and The Civil Mediation Council (CMC) the

recognised authority in the country for all matters related to civil, commercial,

workplace and other non-family mediation.19 The CMC workplace mediation

provider registration scheme 20 is the main access channel for users of

workplace related mediation services in the United Kingdom.

5. Promoting “The European Code of Conduct for Mediators”, which sets out a

number of principles to which individual mediators can voluntarily decide to

commit, under their own responsibility. It is intended to be applicable to all

kinds of mediation in civil and commercial matters. Organisations providing

mediation services can also make such a commitment, by asking mediators

acting under the auspices of their organisation to respect the code.

Organisations have the opportunity to make available information on the

measures they are taking to support the respect of the code by individual

mediators through, for example, training, evaluation and monitoring. 21

6. Recognise and access the ACAS Reports on Mediation including Workplace

mediation: the participant experience (ACAS 2013) The following observation

is worth quoting in full:

‘Overall, this research provides crucial insights into mediation processes

and outcomes. While it identifies a number of positive benefits, it also

underlines the impact on those who participate and points to the

complexity of the issues that mediators confront and the ambiguity of

consequent outcomes. In doing this it suggests that organisations and

mediation providers need to ensure that participants are supported and

also that careful consideration is given to when mediation is used and

how it is designed.’ 22

18 The Centre for Peaceful Solutions, www.centreforpeacefulsolutions.org19 The Civil Mediation Council, www.civilmediation.org 20 The Civil Mediation Council registration scheme, www.cmcregistered.org21 European Code of Conduct for Mediators, http://www.cmcregistered.org/pages/3/european-code-of-conduct-for-mediators-22 Richard Saundry, Tony Bennett and Gemma Wibberley, Workplace mediation: the participant experience, (ACAS 02/2013) p.36.


6. Recommendations

Specifically relating to the development of a “European Communication Strategy” and

after considering the evidence gathered in the UK, it is apparent that the complexity

of mediation processes and confusion over definitions across sectors may present an

obstacle to the development of such a Strategy.

The following recommendations are informed by and are intended to contribute to

the continuing debate concerning the nature and use of mediation and its

accessibility to SMEs:

1. Clearer definitions of what is meant by mediation are required – the

terminology is often confusing and as a consequence means different things

to different people. Considered in a European dimension, additional clarity

needs to be sought concerning the terminology used. The diversity of

cultures, languages and access to information in the UK illustrates how

complex this issue is – it remains to be seen whether this could equally apply

to other countries within the European Union.

2. The relative cost of mediation needs to be clarified. Many SMEs need to

factor-in “time” as well as the financial costs involved in establishing mediation

systems and procedures. If SMEs also have to factor-in the adoption of a

“European Communication Strategy” time and financial arrangements already

spent on developing UK based procedures may require further analysis.

3. Access to a “one-stop-site” for mediation information, shared experiences and

procedures will promote improved access to mediation services but may not

prove helpful in any attempt to promote a “European Communication

Strategy”.

--ooOOoo--

Benefits of using Mediation

in your business

This unique and intense one-day workshop will address the lack of mediation information provision to small businesses in the UK and ensure that participants are aware of where to go for such information, how to access it and the immense value of using mediation techniques and tools within their own businesses. The purpose of this one-day workshop will be to:

1. Impart knowledge and experience to the participants in order to increase their knowledge of mediation to resolve disputes at an early stage (and save money)

2. Provide interactive opportunities for SMEs to share their expertise and experiences.

3. Raise awareness of the new Industrial Tribunal Rules and the implications for SMEs in the UK. 4. Provide a unique opportunity to access mediation information and to share best practice in

the EU.

Workshops are FREE to participants and include morning and afternoon refreshments and a light buffet lunch. Places are strictly limited and will take place as listed: LONDON – THURSDAY 6 MARCH MANCHESTER – THURSDAY 13 MARCH LEEDS – FRIDAY 14 MARCH For more information and to register for these workshops please visit www.mediationskills.co.uk or contact Sue Quantock by emailing [email protected]

This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the Commission cannot be held responsible for any use, which may be made of the information contained therein.

Copyright © 2014 The Foundation for European Initiatives http://www.tfei.org.uk All rights reserved.

APPENDIX 1a

http://www.mediationskills.co.uk/

mailto:[email protected]

http://tfei.org.uk/

This project has been funded with support from the European Commission. This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may be made of the information contained therein.


WORKSHOP PROGRAMME

10 A.M. TO 4 P.M.

TIME EVENT

10.00 – 10.15 Welcome and DomesticsThe Foundation for European Initiatives will give a short presentation on the EIRENE Project.

10.15 – 11.15 Module 1Examines what mediation is, its’ principles, stages and mediation strategies and how mediation is used in a variety of situations.

11.15 – 11.30 Break

11.30 – 12.45 Module 2From audience suggestions and presenter’s case studies we will examine what happens in a mediation and demonstrate how we approach it.

12.45 – 13.30 Buffet Lunch

13.30 – 14.45 Module 3So you want to use mediation in your business…..Who to ask.

Guest speaker will cover aspects of the use of mediation within Civil and Employment Law.

14.45 – 15.00 Break

15.00 – 16.00 Module 4Question and Answer session with time for brief 1:1 (if required) with Trainers and guest speaker.

APPENDIX 1b

Biography for David and Maria

MARIA ARPA FOUNDER AND CHIEF EXECUTIVE, Centre for Peaceful Solutions www.centreforpeacefulsolutions.org

Maria has made interpersonal skills a lifetime project. Alongside a 25-year career in marketing and advertising, she developed her talent for engaging people in healthy conversations through her experiences as a Samaritan volunteer, a counsellor, a Reiki Master and a mediator. Maria also spent time at the sharp end running her own business for 15 years and working as a stand-up comic for five years before becoming the Chief Executive of a Community Mediation Service. She regards being a mother to two young adults as her most rewarding communications challenge.

Maria is a former Chair of Mediation UK, has a Master’s degree in mediation and conflict resolution and is a sought after speaker and trainer. Described by the Civil Mediation Council as one of the UK’s ‘top’ mediators, Maria developed a communications tool called the Dialogue Road Map which has gained recognition amongst senior mediation professionals.

She is founder of the Centre for Peaceful Solutions, a charity which offers mediation and mediation training for civil, commercial, workplace, family and community disputes. In 2010 the charity completed a 3 year project funded by HM Treasury to develop a sustainable mediation model for violent crime and anti-social behaviour. The work has taken her into some of the most deprived areas of London.

Maria’s ‘hands-on’ experience ranges from Multi-National Corporate business deals to Street Gang threats to life and everything in between. Typical cases include business deals gone wrong, interpersonal conflicts at work, neighbours at war, youth postcode conflicts, family break up, family reconciliation, and group communication break-down. Most recently, Maria is setting up a street gang mediation service run by ex-offenders in New York and introducing Restorative Justice and Mediation to a private boarding school.

Maria’s book, The Heart of Mindful Relationships was published in June 2012 and her second book Mindfulness at Work has just gone into reprint.

DAVID ELLISDIRECTOR, Peaceful Solutions Mediation Service Ltd www.peacefulsolutions.org.uk

David made a radical life change 7 years ago from Managing Director of a three-generation family publishing business to becoming a mediator and is now the lead mediator and Practice Manager at Peaceful Solutions. David’s hands-on experience in business operations and administration contributes a wealth of knowledge. This, coupled with his detailed understanding of the products and services of Peaceful Solutions, delivers a key resource to the business and the charity.

Maria and DavidDavid trained as a mediator in response to Maria’s request for support and for the last 7 years, they have co-mediated over 250 cases and trained around 2000 people. Maria and David actively live the principles of their work in their personal and professional relationship, continuously striving to ensure that they are congruent with the theory and practice they promote.

APPENDIX 1c

http://www.centreforpeacefulsolutions.org/

http://www.peacefulsolutions.org.uk/

About the Speaker

Prof. Andrew Goodman LL.B., MBA, FCIArb, FInstCPD, FRSA, Barrister

Andrew Goodman has been a barrister since 1978 (Master of

the Bench of Inner Temple), now at 1 Chancery Lane, an

arbitrator since 1988, and an accredited CEDR mediator since

1993 practicing in commercial, construction, partnership,

franchising, professional negligence and farming disputes. He

has been recommended as a leading junior in professional

indemnity work and mediation in the Legal 500 for 20 years

and for four years was listed in Chambers Directory as a

leading practitioner is ADR. He is currently Professor of Conflict

Management and Dispute Resolution Studies at Rushmore University, a visiting lecturer

on the LLM/MA courses in Dispute Resolution at UCL and SOAS, University of London,

and a peripatetic lecturer in mediation at the Universities of Reading, Southampton,

Cardiff, Birkbeck College, London, MMU, NTU, LMU, the College of Law and BPP

University College. He is a member of the Independent Standards Commission of the

International Mediation Institute and its Inependent Appraisal Committee, of the Bar’s

ADR Committee and is an internationally recognised mediation advocacy trainer. He

was requested to submit evidence to Lord Woolf's Committee on Access to Justice on

court annexed ADR Practices in other jurisdictions and on mediation to Lord Justice

Jackson’s Review of Civil Costs.

Between 2007-2010 he was Director of Mediation Training for the RICS and still leads

the CMC approved RICS mediator training courses in the UK and abroad. He is a guest

lecturer on ADR for the Lord Chancellor's Visiting Chinese Lawyers' Fellowship

Programme and has trained in mediation and conflict management in the UAE, Kuwait,

Oman, Nigeria, Turkey, Hong Kong, Malaysia, The Netherlands, France and Belgium;

he advises governments, judiciaries and NGOs on mediation advocacy in Belgium,

Croatia, Nigeria, Nepal, Ghana, India and the People’s Republic of China. He speaks

widely on the subject both on an in-house and open basis and offers private in-house

consultancy on conflict avoidance and management.

Andrew is a member of the MoJ/DBS Working Party on Business-led Dispute

Resolution, and the Attorney General’s Committee on International Pro-Bono Work and

the Judicial Assistance Network. He is a Bar Council, Inner Temple, NITA (UK) and NLS

accredited advocacy trainer.

He is the author and editor of over 40 books including Mediation Advocacy (2nd edn

Nova Law & Finance, 2010 with editions in Hong Kong, Nigeria and India) How Judges

Decide Cases: Reading, Writing and Analyzing Judgments (Xpl, 2005), Effective Written

Advocacy in Practice (2nd edn Wildys 2011), although most well-known as author of The

Court Guide (20th edn PP Publishing 2011-12). In April 2006 Andrew Goodman

established Xpl-Professional Skills Training offering bespoke in-house specialist and

advanced training in commercial law and practice, specialist and written advocacy and

mediation representation/advocacy: see http://www.xpl-pst.com and has since become

a senior consultant to training organizations in the Middle East specialising in oil and

gas, utilities, transport, infrastructure and construction.

Andrew is Convenor of the Standing Conference of Mediation Advocates

(www.mediationadvocates.org.uk), a cross-professional association of practitioners

devoted to creating a bench mark standard in mediation representation as a specialist

area of practice and Director of the Higher Education Disputes Advisory Service.

http://www.xpl-pst.com/

http://www.mediationadvocates.org.uk/

KEN SALMON - DISPUTE RESOLUTION PROFILE

Chartered Institute of Arbitrators (CIArb) Accredited and panel Mediator

Solicitor England & Wales and in Eire

MCIArb

Firm: Senior Counsel and independent consultant at Weightmans

LLP solicitors, Pall Mall Court 61-67 King Street Manchester M2 4PD

Tel: Work (DD) 0161 214 0515

E: [email protected]; or [email protected]

Construction: contentious and non-contentious business experience

Building, civil engineering, professional negligence, rail, marine, energy, site remediation

Representation and advocacy in adjudication, arbitration, litigation, mediation, conciliation and expert

determination

Defence of prosecutions under Health & Safety and Environmental legislation

Drafting and negotiating construction documentation

Non construction legal experience

Professional negligence

Commercial disputes

Personal injury for claimant and defendant

Landlord and Tenant

Recent mediation experience

Dispute about quality of work and materials between employer and flooring contractor

Assistant mediator in a professional negligence claim against structural engineer over design of steel-

framed 3-storey building

Assistant mediator in a professional negligence claim by home buyer against solicitors and surveyors

Tenant’s claim for rent and Landlord’s counterclaim for dilapidations (telephone mediation)

Disputes between employer and contractor under a building contract over sums due

Claims and counterclaims about determination, repudiation, payment, costs of completion and defects,

concerning plumbing works under a series of contracts

Claims and counterclaims under a contract for cladding and roofing works, with issues over price,

measure, defects and following disputed determination over loss of profit.

Claim by builder for payment and loss of profit on repudiation with counterclaim by building owner for

defects and damages for delay and repudiation

Claim by builder for payment with counterclaim by employer for defects and loss of rents

Dispute between partners over retiring partner’s entitlements

Claims and counterclaims arising out of proposed sale of industrial unit

A tripartite dispute concerning liability for damage to two electrical motors used for power generation

and cost of replacement, loss of profits and management time

Assistant mediator in a five party dispute concerning alleged defects in an air handling unit leading to a

flood

A three party dispute over defects in shop premises with claim for future loss of profits

High value dispute over the valuation of work of refurbishment of a substantial private residence

Tripartite dispute over testamentary dispositions involving allegations of misrepresentation and undue

influence

Assistant mediator in a dispute over a business lease involving issues over meaning of terms including

rent review, calculation of profit related element of rent and market rent

Time limited mediation concerning carriage of goods, lien, loss of profit

mailto:[email protected]

Time limited mediation about the quality of hardware, software and service under several IT contracts

Six figure construction dispute over contract terms, variations and valuation

In addition, Ken has represented parties in mediations (and other ADR processes) on many occasions

Other information

2007 Chartered Institute of Arbitrators Mediator Accreditation

Member of the Panel of Mediators of the CIArb

Member of the Panel of the Association of Northern Mediators

Chairman ANM Construction SIG

Member of the Panel of Mediators of Effective Dispute Solutions Ltd

Member of Panel of LawWorks

Member of CIArb and Committee member NW Branch

Member of TeCSA

Member of the Adjudication Society

Member of SCMA

Author of The Enforcement of Construction Adjudication Decisions (2012) published by CIArb

Endorsements

“Ken was a rock: calm, organised, thoughtful, creative and supportive. He was clearly up-to-speed on the

papers, sensitive to the situation and parties’ needs, and always looking to assist the process. He has a charm

and ease with people that is an effective asset” Quentin Smith Mediator

“His skill at conciliatory mediation was in my opinion, the catalyst to the agreement reached…”. “…both

parties…have continued to trade…” “I greatly appreciate the efforts of [Ken] and recommend him highly.” Q

Flooring Systems Limited

“… Mr Salmon put our client at ease and had clearly read and understood all of the documentation provided to

him in advance. He took a flexible approach to the mediation and ultimately the dispute was resolved without

the need for the usual round-table session. Mr Salmon came across as knowledgeable and familiar with the law,

the type of dispute and the mediation process. The over all impression was that Mr Salmon was a very

experienced and competent mediator.” Pannone solicitors

"I appointed Ken Salmon as mediator on a construction dispute which had being on going for a significant

period of time with the costs of litigation a concern for all. Through his calm, organised and commercial

approach Ken was able to help negotiate a settlement which was satisfactory to the parties when this had

appeared unlikely prior to his involvement. I would instruct Ken again and would recommend him to mediate on

disputes of this nature." Richard Preston, Beswicks solicitors Stoke on Trent

“Ken Salmon recently dealt with a tricky building dispute by mediation. The issues were made more complex by

reason of the fact that there was little helpful documentation and there were differences on a personal level

between the parties. His preparation was meticulous and he kept the mediation running with a practical

approach which ensured that we made progress throughout the day. His warmth and humour helped the parties

to unbend and with a measure of relief on both sides we concluded a settlement without having to enter into

one of those intolerable late evening sessions”.

John Alcock DAVIS• BLANK• FURNISS

“I will certainly be nominating you again after your splendid work. My clients commented to me after the event how important they felt your involvement had been in securing a settlement.” Neil Hunter Systech Group PLC

QUESTIONNAIRE

The EIRENE Project, through this questionnaire, would like to gather your opinions to

assess this current activity, part of the Eirene Project, which is undertaken with the

financial support from the “Civil Justice Programme” of the European Union.

Please read carefully all the questions and answer them honestly.

Thanks for the effort!

GENERAL INFORMATION: Please mark with an X where applicable.

GENDER AGE SECTOR SIZE

� MALE � 20 TO 30 � AGRICULTURE

AND FISHERIES

� MICRO ENTERPRISE

(1 to 10 employees)

� FEMALE � 31 TO 40 � INDUSTRY� SMALL BUSINESS

(11 to 49 employees)

� 41 TO 50 � CONSTRUCTION� MEDIUM-SIZE BUSINESS

(50 to 250 employees)

� 51 Years or

more� SERVICES

� LARGE COMPANY

(251 to 1.000 employees)

P.1. Did you know about mediation before attending this activity?(Mark only one):

� Yes

� No.

� Not Know / No answer.

P.2. In your opinion, why mediation is not yet widely known among companies? (Mark only one):

� There have been no specific outreach campaigns for companies.

� It is so new and it is not yet sufficiently known.

CODE:COMPANIES

APPENDIX 2

� The common use is to go to court.

� Other (please specify)

…………………………………………………………………………………………………

……………………………………………………………………

P.3. In your opinion, which is the best way to promote mediation among companies? (Please indicate from 1 to 8, with 1 being the best and 8 the worst):

� Television.

� Radio.

� Print Media.

� Social Networks.

� Conferences, Workshops.

� Newspaper in Internet.

� Journals.

� Other: (Specify)

..........................................................................................

P.4. Do you think that mediation is an alternative to solve conflicts? (Mark only one):

� Yes, always.

� Yes, but only in certain cases.

� No, never.


P.5. If your company is a party in a conflict, would you use mediation? (Mark only one):

� Yes, I think that it is best way to resolve it.

� First I will denounce it and then I would think about mediation.

� No, never.


P.6. Would you recommend mediation to other professional colleagues or other companies? (Mark only one):

� Yes, always, regardless of the conflict.

� Only occasionally, I would recommend it, pointing out the advantages of mediation (faster and with lower cost).

� No, never.

� Not Know/No answer.

P.7. Would you know where to go to find the resources you need for mediation in your city, such as, mediators, associations, etc? (Mark only one):

� Yes, now I know the resources.

� I am not at all clear where I can go.

� Not Know/No answer.

P.8. Indicate the main reason for attending this activity. (Only one reason):

� It is free.

� Because it can be interesting for my company.

� Other reasons (please be specific)

…………………………………………………………………………………………………

…………………………………………………………………………………………………

…………………………………………………………………………………………………

………………………………………………………………………………………………

1

1

The Foundation for European Initiatives

THE USE OF MEDIATION WITHIN CIVIL AND EMPLOYMENT LAW

Prof. Andrew Goodman LLB MBA PhD FCIArb FInstCPD FRSA Barrister and CEDR Mediator

Content

1. The Legal basis for mediation

What is the legal basis for civil/commercial mediation?

Mediation is a voluntary, non-binding, and private dispute resolution process in which a (trained) neutral person helps the parties try to reach a negotiated settlement1.

7

Voluntary

In most cases mediation cannot take place unless the parties agree to enter the process, although this may only be after a strong judicial recommendation, with an associated risk of cost sanctions against a party who refuses to mediate. Mediation is not possible without the participation of all parties, and will cease if one party walks out, which they are free to do at any time. The legal basis is therefore entirely consensual. The process is reduced to writing in which the governing terms and conditions of the agreement form a contract – the mediation agreement – which binds the parties and the mediator.

Non-binding

Mediation is also truly voluntary, as entering the process does not bind the parties to reaching settlement; unlike arbitral dispute resolution processes, mediation cannot be continued by the opposite party should your client choose to leave the process. Settlement can only come about on the authority of the parties concerned. As the mediator has no authority to make a binding determination, if the parties cannot agree, then there will be no settlement and the case will proceed to the next stage in the litigation process. However, if settlement is reached the agreed terms will form part of an enforceable contract. Mediation is merely a process which acts as a catalyst for settlement: many of those cases that do not settle at the mediation itself in fact settle shortly afterwards.

Private

Although refusing to mediate can have adverse costs consequences, the mediation process is both “without prejudice” and absolutely confidential to the extent the law permits2.This means that parties can conduct themselves in the mediation, for example by disclosing information, expressing views, making suggestions or offering concessions, safe in the knowledge that this will not preclude them arguing a different position should the matter proceed to trial. Similarly, a party is free to refuse offers made in mediation, or even to walk out, without the risk of this being held against them if a court determines costs in the future3.

9

The confidential nature of mediation negotiations stands in clear contrast to the courtroom, which is in public and potentially extremely embarrassing. Of course, should mediation break down a party is free to formalise an offer made during mediation as a Part 36 offer which would carry the usual costs implications. 1

See Brown and Marriot, ADR Principles and Practice, 3rd Edition, Sweet and Maxwell 2011, 127-131.

2See Farm Assist Ltd (in Liquidation) v DEFRA (No.2) [2009] EWHC 1102 (TCC). Venture Investment Placement Ltd v Hall [2005] EWHC 1227 (Ch) and

Reed Executive Plc v Reed Business Information [2004] EWCA Civ 887 applying Rush & Tompkins Ltd v GLC [1989] AC 1280 HL but cf In Re a Company [2005] EWHC 3317 (Ch) where what occurred in the mediation was the subject of satellite litigation.3

See Halsey op.cit and Burchell v Bullard [2005] EWCA Civ 358.

APPENDIX 3

2

2

The terms of any settlement agreed in mediation are usually also confidential. However, this need not necessarily be so. In certain disputes one of the parties may be seeking some kind of public vindication (e.g. in a defamation case) or apology for past conduct and there is no reason why a public declaration cannot form part of a mediated settlement.

Neutral mediator

The mediator must be a truly neutral person having no association with either of the parties nor any interest in the outcome. Mediation requires all parties to trust and give authority to the mediator. Should any party withdraw that authority, the mediation will come to an end. Likewise, should trust in the mediator be broken for any reason, it is unlikely that a settlement will be reached.

The mediator’s role is to assist the parties in their negotiations with each other and help the parties work towards a consensual resolution of the dispute. However, the parties themselves remain responsible for their own decisions and answerable for the terms of any settlement that may be agreed.

A settlement, negotiated by the parties

As highlighted above, a settlement is only possible in mediation with the consent of the parties, and it is they who are responsible for the terms of any agreement. While mediation certainly aims for a resolution that maximises all parties’ interests (often called “win-win” outcomes), by its very nature it should never achieve an outcome with which one party cannot live. As the onus of arriving at the terms of settlement rests with the parties, the flexibility of the process allows for more ingenuity and extra-legal solutions than would ever be possible from a determination imposed by a court or other arbitral process. This responsibility also offers party empowerment, and frees participants from having to think in terms of cause of action and available remedy.

Are there any rules?

Mediation doesn’t operate in a vacuum. It is a process governed by rules, and in addition the professionals involved are also governed by rules.

If so from where do they derive?

The principal rules stem from the mediation agreement entered into by the parties, the mediator and any mediation service provider that is administering the process.

Additional rules may be found in any substantive contract which may be the subject of the dispute between the parties and which provides for mediation and the dispute resolution process

The mediation may in addition be governed by English common law or the Civil Procedure Rules. This may extend to rules concerning enforceability, confidentiality and costs.

Common law rule will govern the settlement agreement between the parties.

The ‘home’ professions of the mediator, mediation advocates or experts will all gave codes of conduct and ethics which are relevant to the professional conduct of such participants in mediation.

Do they have the force of law?

Rules governing mediation are underwritten by contract law. The enforceability of the mediation and settlement agreementsand rules governing confidentiality may also be governed by laws supporting public policy.

Do they have any ethical or moral force?

Where parties are represented they come under prescribed codes of conduct which reflect ethical positions.

3

3

The law is intended to protect against fraud, misrepresentation or mistake which induces a party to settle when otherwise they would have not, or for less beneficial terms.

Does the legal basis for mediation promote or restrict client empowerment?

It promotes greater client involvement, particularly in the use of agenda setting, lay language, problem solving and decision making, and relegates the professional advocate to team member rather than team leader.

What certainty is there for enforcement?

If the settlement agreement is enforceable at law, that certainty will affect any agreement flowing from a mediation. That certainty flows from legal principle, namely that any contracted bargain must be sufficiently certain, legal, workable and enforceable.

Is there any legal protection in respect of costs?

The parties agree costs provision in the mediation agreement.

2. The mediation agreement →The settlement agreement

What is the mediation agreement?

The agreement between the parties and mediator setting out the terms and conditions under which the mediation will take place.

What should it contain?

There are certain key points which must be found in every mediation agreement:

(i) The entire proceedings are confidential and without prejudice.

(ii) No party may call the mediator to give evidence in later proceedings of what he has learned in the course of the mediation . This prohibition extends to costs proceedings.

(iii) The process is voluntary: any party can call a halt to the proceedings without sanction.

(iv) The mediator’s role is to facilitate a settlement, not to pass any judgment or make any findings.

(v) The terms of any agreed settlement are to be in writing.

In addition to these fundamental provisions, it is possible to agree the format or contents of the mediation by the insertion of agreed protocols into the agreement. Examples of such usual clauses as these are:

• The parties will have authority to settle on the day.

• The parties will observe the mediator’s directions.

• The parties will remain at the mediation for a minimum of one private session each.

• The mediation may be terminated in the event of a specified circumstance.

• The parties will not record/tape the mediation sessions.

Some standard form mediation agreements now extend to fairly sizeable documents with explanatory notes and guidance as to the conduct of the mediator

What power do the parties have over its contents?

4

4

Technically the parties are free to decide what they want. However most mediators will produce a standard form document which they use for every mediation.

Is it legally enforceable?

Yes, in contract law.

What should the settlement agreement contain?

It is essential that the parties secure a concluded agreement that is workable, comprehensive, (both as to the dispute and any wider issues which have been introduced,) and enforceable. It is vital that the form of the agreement right. As the party’s lawyer it is part of his or her role to ensure that the settlement is enforceable. The terms must be certain, specific, effective, practical and complete, in particular dealing with who is to do what, when, and with what precise consequences. A provision will usually need to be inserted detailing what to do if one side or the other fails to adhere to the agreement or if it proves to be unworkable.

It is as well for party representatives (mediation advocates) to take a draft containing the likely heads of agreement with and, if litigation is running, a general form of aTomlin order. If the compromise contains terms found in a recognised standard form or precedent these should be included.

As parties near settlement advocates or, in some instances, the mediator (where parties are unrepresented and the mediator has expertise in drafting agreements, and is willing to d so) should begin to draft the proposed agreement in each private caucus room. By discussing the structure, form and contents with the parties as early as possible, the agreement can be formed as the mediation progresses. This will help focus on the details and will place the clients’ personal agenda in context.

A balance must be struck between too little, and too much detail. Remember it is likely to be either quite late or very late, at the end of a long day, when all are tired and mistakes can be made.

The decision maker in each party should be the signatory, although lawyers may do so if litigation is running.

The parties will usually wish to consider the introduction of certain standard clauses irrespective of the nature of the settlement. These should deal with:

• confidentiality;

• any relevant choice of law or jurisdiction;

• the entire agreement between the parties;

• a default mechanism to deal with future disputes;

• whether, if there is a breach of this agreement, the original cause of action should be reinstated.

The settlement-specific clauses need to be certain as to:

• payment: who pays, to whom is payment made, and how much;

• the form in which payment is to be made;

• whether payment is to be immediate or in stages;

• the mechanism for default of payment;

• the provision of interest;

• the costs of the litigation;

• the costs of the mediation;

• any public statements;

5

5

• the discontinuance or withdrawal of proceedings;

• any special clauses dealing with enforceability;

• who is the signatory, his status or authority.

There will be occasions when the parties can do no more than agree outline heads of agreement, but this should be avoided wherever possible. Saving an hour at the end of the mediation by agreeing outline heads of agreement exposes the parties to the risk of further disputes in which the argument shifts from its original subject matter to contesting what has been agreed. It is essential that the intention of the parties is made plain, and there is at least sufficient detail to ensure that an impartial reader would have a clear idea of precisely what has been agreed. If there is no time to put in the complexity of the mechanics of the transaction, or, for example, the tax implications have not been advised upon or worked out, at least draw a distinction between the agreement itself and the mechanics for performing it.

Who drafts it?

In order of preference, the parties, their lawyers, the mediator, a joint lawyer post mediation. There is no fixed rule.

What force does it have in law?

The document becomes an enforceable contract. Breach of a consent agreement or a consent order is likely to lead to summary judgment in the courts.

What happens if things go wrong?

There should be a mechanism in the settlement agreement, failing which, court process and enforcement proceedings

What happens if parties cannot agree?

The mediation can be terminated or adjourned. The mediator should be given power to do both within the mediation agreement.

3. The Juridification of Mediation

Is mediation truly unregulated?

On one level mediation is unregulated: anybody can call themselves a mediator and practice as such, or represent parties at mediation for a professional fee. However accreditation by a number of provider bodies and an umbrella group The Civil Mediation Council has moved the market towards embracing professionalism, qualification and experience, and by natural extension ethics, professional indemnity insurance, and peer recognition.

With what aspects of mediation is the law concerned?

By tradition the law and lawyers bring within their embrace successful areas of commercial activity for regulation, control and eventual professional monopolisation. There has been a creeping juridification of those areas of mediation which operate within the fringes of the mainstream civil jurisdiction in England and Wales: a corpus of procedural law is taking hold of mediation in areas which concern

• Validity of the mediation agreement

• Confidentiality of the process

• The existence or otherwise of a ‘mediation privilege’

• The enforceability of settlements obtained in mediation

• Mediation under actual or implicit duress by the courts and

6

6

Costs sanctions for unreasonable refusal to mediate

These are not to be regarded as soft law, or merely matters for debate. In such areas the law actively embraces and regulates mediation practice as it would in considering its supervisory role in dealing with any other type of subordinate jurisdiction. It goes to the fundamental question of how courts view the legal nature of the mediation process, and lawyers will need to be able to address this issue when questioned by a judge during the case management process who wants to know about the suitability of the case for mediation.

How does the law intervene to protect parties?

Raising the profile of mediation using a carrot and stick approach. The most recent cases on Court awards of adverse costs for failure to mediate:

Faidi Hameed and Faidi Inam v Elliot Corpn [2012] EWCA Civ 287 Neigbourhood dispute – block of flats – vertical noise transmission

Rolf v De Guerrin [2011] EWCA Civ 78 Small building dispute

Gaith v Indesit Company UK Ltd [2012] EWCA Civ 642 Parties argued too far apart to mediate – rejected by CA per Sir Alan Ward

PGF II SA v OMFS Company and Bank of Scotland Plc [2012] EWHC 83 (TCC) Dilapidations claim – argument for balance of costs after late acceptance of Part 36 offer

Confidentiality and without prejudice status of process:

Farm Assist Ltd (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC) – Generally mediation attracts a right of confidentiality vested in the mediator who therefore cannot be compellable as a witness to the contents of the mediation. Subject to overriding interests of justice.

4. Mediation and Solicitors

What role do lawyers have in mediation?

At its heart mediation is a form of intervention in which the lawyer – or more particularly the litigator or dispute resolution specialist - acts as gatekeeper of the dispute. Their key roles lie in (i) the skill set of the lawyer advocate; (ii) the diminishing reality of empowerment; and (iii) the shadow of the law,under which most disputes lie.

(i) Lawyering skills

The handicap of the lawyer’s professional training and psyche is counterbalanced by his innate skills as an exponent of critical analysis, of problem solving and of communication in circumstances where dynamic change is part of the dispute process and has to be reacted to and catered for. The lawyer is trained at absorbing and processing information, seeing message patterns, finding linguistic cues and socially constructed meanings. His or her analysis of the cognitive frames people use in a given conflict provides insight and better understanding of the conflict dynamics, of finding new ways of reaching agreement by clarifying the perception of issues, sharpening the parties understanding of interests, and identifying the means of viewing the subject matter differently, or at least identifying those differences which cannot be bridged and which may have to be set aside.

(ii) The reality of empowerment

One of the central arguments put forward by the proponents of mediation is that it operates as a means of settling conflict that leaves responsibility for outcomes in the hands of the parties themselves, rather than have a decision imposed by a judge or reached by bargaining between partisan lawyers. Ultimately authority belongs to parties themselves . However the idea of client empowerment is undermined to some extent both by the reality-testing activities of the mediator, against whom the lawyer offers some defence, and almost exclusive knowledge of post-mediation risk management.

(iii) the shadow of the law and court-annexed procedure

7

7

Court agendas include large portions of routine administration and supervised bargaining. Certain academics have suggested that courts provide set of “counters” to be used in bargaining between disputants. For example in divorce bargaining involves maintenance, child support, custody and matrimonial property and often one class is used to offset another. Such counters exist within the court structure and its process – delay, cost, the uncertainty of outcome, imponderable factors such as the adequacy of proofs, exercise of the Court’s discretion, the preparation of the lawyers, negotiating skills, an ability to respond to deadlines and emergencies, and an ability to recover or bear costs. This bargaining between parties is a kind of “private ordering” that takes place in the shadow of the law. A lawyer has to assess the impact of what will transpire in such ‘ordering’ to compare that with a mediated outcome.

All litigators must now have a basic understanding of its principles to be able to act in an advisory role. They not only have a responsibility to identify cases, both pre-and mid-proceedings, for which mediation is appropriate, and to explain the mediation process to clients and other legal professionals. They have specific tasks within the process –

(1) Deciding to and persuading others to engage in the process

(2) Choosing the mediator

(3) Controlling the pre-mediation element

(4) Team leading at the mediation appointment

(5) Securing a working settlement

As advocates, they must be able to deal with all aspects of mediation within case management.

Is it possible to mediate without a solicitor?

Yes, but whether that is advisable depends on a number of things: subject matter and value of the dispute, nature of the dispute, relations between the parties, costs, what is likely to happen if the dispute cannot be resolved.

How are solicitors regulated in mediation?

The Solicitors Regulatory Authority and the Bar Standards Board regulate the conduct of lawyers who are involved in mediation. In addition lawyer mediators are expected by the Civil Mediation Council to subscribe to the European Code of Conduct for Mediators.

5. Mediation and the CPR

How does mediation fit into the civil justice system?

The overriding objective of the Civil Justice Rules 1999 enables courts to be proactive in encouraging parties to use mediation and to make adverse costs orders if parties unreasonably refuse to do so. The most recent case –PDF – was one where the court made an adverse costs order against a winning parties for refusing even to answer a proposal to mediate from the losing defendant.

Additionally the courts promote their own schemes:

Small Claims mediation; Technology & Construction Court Mediation Scheme; Commercial Court Mediation Scheme; Court of Appeal referral to mediation.

Do the courts have any role?

Active case management; the power to stay claims; pre-action protocol requirements; Practice Direction on Pre-action Conduct. All underwritten by adverse costs sanctions dealing with the behaviour of litigants.

6. The Legal Basis for Workplace Mediation

8

8

What is the distinction between workplace and employment mediation?

Workplace mediation is designed to resolve disputes while the contract of employment still subsists. Employment mediation deals with disputes where employment has been terminated, and is intended to reduce Tribunal applications.

The mediation agreement and the contract of employment.

Modern contracts of employment will contain default provisions where the employer/employee are required to go to mediation if negotiation fails.

Advantages of workplace mediation.

The overriding aim of workplace mediation is to restore and maintain the employment relationship wherever possible mediation. This means the focus is on working together to go forward, not determining who was right or wrong in the past. Employers have the advantage of cost, time and confidentiality. Employees can get better and faster remedies.

In particular employers can minimise the organisational costs of Workplace conflict –

•� the risk of time-consuming formal proceedings such as grievances and employment tribunal claims

•� sickness absence costs as the individuals concerned take time off to deal personally with the effects of the conflict

•� management time being diverted to dealing with the conflict instead of focusing on managing the business

•� staff turnover and re-recruitment and re-training costs, where conflict leads to the departure of those affected from the organisation

•� lower staff morale leading to less commitment to exerting discretionary effort, leading to lower productivity

•� poor working relationships within the teams affected

•� loss of focus on corporate goals and common objectives as people are distracted by the disagreement

• the potential for a blame culture to develop, rather than one focused on innovation

• the employer’s external reputation could be compromised

7. Mediation and Employment Legislation

The role of ACAS and where employment legislation on mediation stands now.

Agreements reached through ACAS facilitated mediation are not intended to be legally binding or enforceable, but binding in honour only. However, where both parties agree, legally binding agreements can be drawn up.

In about 80% of mediations undertaken by Acas, an agreement is reached.

Mediation is not presently contained within any employment legislation.

Mediation in Business and Employment Law

By

Kenneth T Salmon

MCIArb solicitor in England and Wales and Eire and accredited mediator

APPENDIX 4

2

Mediation in Business and Employment Law

By Kenneth T Salmon MCIArb solicitor in England and Wales and Eire and accredited mediator

The legal basis for mediation

1. Mediation is a voluntary, non binding and private dispute resolution process in which

(a trained) neutral person helps the parties try to reach a negotiated settlement1.

2. Voluntary The parties must agree to enter the process albeit they may be subjected to

strong judicial encouragement. There is no settlement unless and until a binding

agreement – a contract - is entered into.

3. Non – binding Parties are not bound to reach settlement. Settlement derives from the

authority of the parties.

4. Private The process is both without prejudice and absolutely confidential to the

extent the law permits. What the parties say and do in mediation cannot be referred

to in any later proceedings nor preclude a party from arguing a different position.

Offers made or refused cannot be disclosed. The terms of any settlement are usually

confidential unless otherwise agreed. The only time the court will enquire to any

degree as the events occurring is when it is asked to enquire whether a binding

settlement ahs been reached or to enforce a settlement.

5. Neutrality The mediator must of course be neutral; or have disclosed any past

association with any party and gained acceptance. The parties are responsible for

their own decisions and answerable for the terms of any settlement.

6. Settlement Only possible with the consent of the parties.

Contractual provision

7. You can and should consider providing the opportunity for mediation as a means of

dispute resolution in your business contracts and employment contracts or grievance

procedures.

1 See Brown and Marriott, ADR Principles and Practice 3rd Ed, Sweet & Maxwell 2011, 127-131

3

8. If you wish the provision for mediation in a business contract to be enforceable the

rules of mediation must be expressly stated in the contract.

Agreement to mediate

9. If you don’t have a contractual provision, you can offer the opportunity on an ad hoc

basis at any time.

What are the rules; and do they have force of law?

10. The process and the professionals involved are governed by rules. The rules stem

from the agreement to mediate entered into between the mediator, the arties and the

mediation service provider (if any). These rules may be supplemented by the

substantive contract. The mediation may also be subject to English common law or

the Civil Procedure Rules. Mediators and party representatives who are professionals

will also be subject to the rules of their professional body; and the provider will also

have rules.

11. The rules have force of law by virtue of the contract / mediation agreement,

supported by public policy. Mediators and party representatives who are

professionals will be governed by codes of conduct and ethical considerations. The

law will protect parties against misrepresentation or mistake which induces

settlement or settlement on less beneficial terms.

12. The legal basis for mediation promotes greater client involvement in setting the

agenda, use of lay language, problem solving and decision making, and relegates the

professional representative to team member not team leader.

13.The settlement agreement will be enforceable provided its terms are genuinely

agreed, sufficiently certain, legal and workable.

The mediation agreement

14. Sets out the terms and conditions under which the mediation will take place. The key

points which must be found in every mediation agreement are

(a) Proceedings confidential and without prejudice

4

(b) Mediator not to be called as a witness

(c) Process voluntary

(d) Mediator to facilitate not express opinion or make findings

(e) Terms of any settlement to be in writing.

15. In addition it is usual to provide for authority of attendees date time and place of

mediation the parties will attend in good faith and observe the mediators directions

and for termination in specified circumstances.

16. The Mediation is intended to be legally enforceable as a contract.

Settlement Agreement

17. Any agreement must be workable comprehensive and enforceable. It is the

responsibility of the parties and their representatives to draw up the agreement. If

there are legal proceedings pending the settlement agreement must provide for them

to be stayed or withdrawn. Where parties are unrepresented the mediator may lend

his expertise to the drafting process. It is generally desirable for the parties to sign

the agreement in person (or the authorised representative of the company or

corporation) but sometimes lawyers are authorised to and do sign.

18. The Settlement Agreement needs to deal with

Confidentiality

Choice of law

Default mechanism for future disputes or to deal with breach

19. Settlement specific clauses are needed to deal with payment, transfer of property,

time, interest, costs, public statements, court proceedings, authority of signatories.

20. Outline agreements and heads of terms are better than nothing but should be

avoided where possible.

21. Once agreement is signed the settlement agreement has the force of a contract. If

there are court proceedings sometimes the terms or some of them e.g. as to costs are

recited in a court order where there is no need for confidentiality.

22. If the parties cannot agree terms the mediation may be terminated or adjourned.

5

The influence of the law on Mediation - Access to the courts, mediation and costs in civil

proceedings

23.Anyone can call himself a mediator and practice as such or represent parties.

However mediators are commonly accredited by professional providers under the

umbrella of the Civil Mediation Council. There continues to be a creeping

juridification of mediation by the courts and professional providers. The areas of such

control are summarised below.

24.The law has developed to deal with validity of the mediation agreement, the

confidentiality of the process (including the possible existence of mediation

privilege), the enforceability of settlement, the judicial encouragement of mediation

and costs sanctions for unreasonable refusal to mediate.

25.The courts will expect parties to do everything to resolve their disputes before

coming to court. Judges are now keen on and will encourage mediation or equivalent

ADR2 process. If mediation or some other ADR process has not been tried, the court

will expect parties to engage in one - unless there is very good reason not to.

26.The Commercial court will usually make an ADR order, which strongly encourages the

parties to attempt to resolve their dispute by ADR (usually mediation) the order

requiring the parties to cooperate; it will appoint a mediator if the parties cannot

agree one. If they do not settle, the parties must file a statement explaining what

steps were taken and why those steps failed.

27.Construction disputes are dealt with in the Technology and Construction Court (TCC).

They are particularly suited to mediation because of the vast amounts of costs and

time it can take to resolve them.

28.Family law. The courts are regarded as the last resort and mediation has been well

established since the Family Law Act of 1996. But I say no more about Family law or

community mediation of which there are numerous schemes.

29.Offers to mediate on the one hand and a refusal to mediate on the other can both

have significant costs consequences. Making an offer to mediate may give you some

2 Alternative Dispute Resolution; methods of, such as: mediation, conciliation, expert determination, and early neutral

evaluation.

6

costs protection later. Unreasonable refusal to accept a genuine offer to mediate and

to engage in good faith in the process can have unpleasant costs consequences – i.e.

result in loss of costs even if you are the eventual winner in the proceedings.

30.Cases:

a) Encouraging Mediation

Faidi, Hameed and Faidi, Inam v Elliott Corporation [2102] EWCA Civ 267 (neighbour

dispute)

Rolf v De Guerin [2011] EWCA Civ 78 (building dispute)

b) Cost sanctions

Swain Mason and others v Mills & Reeve (a firm) [2012] EWCA Civ 498

Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576– A party who refuses

even to consider whether a case is suitable for ADR is always at risk of an adverse

finding at the costs stage.

Mediation in the workplace

31.In 2011/12 there were 186,300 employment tribunal claims (MOJ 21012)

32.Conciliation, a form of ADR which is akin to mediation, has been offered by ACAS3

since 1984. ACAS offers mediation and conciliation schemes which are regulated by

statute rather than the parties’ contract.

33.Employment or workplace mediation (whether statutory or contractual) has a number

of features which are not common to mediation in other civil disputes.

34.Under the Employment Tribunals (Early Conciliation : Exemptions and Rules of

Procedure) which came into force on 6th April 2014, Claimants need to contact ACAS

3 Advisory, Conciliation and Arbitration Service

7

before issuing a tribunal claim, albeit there is no obligation to actually engage in

conciliation.

35.The overriding aim of workplace mediation is to restore and maintain employment

relationships wherever possible. Thus the emphasis is on working together going

forward not on determining who was right. Common benefits (CIPD Conflict

Management survey report 2011) included

Retaining valuable employees (63%)

Reducing formal grievances (57%)

Developing the right culture (55%)

Reducing sickness absence (33%)

Being able to maintain confidentiality (18%)

36.Mediation in the workplace is most effective when used at early stage – before

positions get entrenched or relations breakdown completely. This is a good enough

reason to write mediation into a grievance procedure. In civil disputes mediation may

be attempted as part of the pre-action protocol, before or after proceedings.

37.There may be collective mediation, meaning talks between representatives of groups

(e.g. and most commonly employers and unions).

38.Internal and external mediators. There are different options for introducing

mediation:

a) develop an in house scheme with trained internal mediators; and/ or

b) have a panel of external mediators on-call,

bearing in mind in each case the key need for impartiality.

39.Important for employers to evaluate satisfaction, quality, costs and benefits.

Considerations and interaction between mediation and tribunal resolution

40.Control: in mediation the parties determine and control the procedures; in legal

proceedings, the procedures are prescribed by the applicable rules.

8

41.Preserving relationships: imposed decisions generally mean a winner and a loser (or

both parties losing). Mediation aims to provide a win/win outcome.

42.Saving of time and money; mediation can but need not be expensive. It will add to the

expense if unsuccessful. But it is far less expensive and time consuming than civil /

tribunal proceedings resulting in a trial or hearing.

43.Managing risk: the parties reduce risk by a mediated solution instead of having a

decision imposed on them which they may or may not like.

44.Mediation can provide a tailored remedy. Courts cannot for example order party to

apologise or one party to buy another business or award them future work. An

employment tribunal can normally but not always order reinstatement but not change

of role or responsibility or terms of employment.

How it works – Some practical considerations

45.Seeking and getting agreement to mediate.

46.(When) do I need lawyer or other representative?

To provide an objective view of the merits and reasonable range of outcomes

To speak for you at the mediation

To advise you at the mediation

47.Timing: when to mediate.

48.How long does it take? Workplace mediation lasts

less than a day (22%)

one day (28%)

two days (22%)

longer than 2 days (28%)

[CIPD On line Survey 2008].

9

Based on my experience, not very different from other civil mediation.

FOOT NOTES:

MENTION

1) SCMA – LEAFLET IN INFORMATION PACK. ASK YOUR LAWYER IF HE’S A MEMBER

2) CMC – SET UP TO REGULATE MEDIATION IN THE UK

3) CIArb and ANM – BOTH CMC APRPOVED PROVIDERS

4) ACAS – WHO PROVIDE STATUTORY EMPLOYMENT MEDIATION AND CONCILATION

SCHEMES INCLUDING FREE HELP AND ADVICE LINES

Weightmans LLP

9th Floor Pall Mall Court

61-67 King Street

Manchester

M2 4PD

0161 233 7330


Presented by

Maria Arpa

Centre for Peaceful Solutions

March 2014

This Workshop has been funded with support from the

European Commission. This publication reflects the views

only of the author, and the Commission cannot be held

responsible for any use which may be made of the

information contained therein.

APPENDIX 5

Centre for Peaceful Solutions 1

Why Choose Mediation?

Mediation gives everyone involved a step-by-step way of thinking through their options and arriving at a solution. This means it is less stressful, less costly and less damaging for the parties who are in conflict and everyone else. The parties stay in control of the outcome and the mediator makes sure they make well-informed decisions.

Mediation helps clients to:

• save money - using mediation can greatly reduce costs• make legally binding decisions• work with colleagues or employers without escalation of conflict • keep things confidential• determine the outcome through principled negotiation• decide on a route map for the future

Mediation does not:

take sides or try to judge who is in the right or wrong

tell participants what to do—they are in control and they find their own solutions, or not

take the place of legal representation; clients will still need legal advice throughout relating to their rights and responsibilities.

Notes about Civil Mediation.

Mediation can be used in a wide range of civil and commercial disputes that might otherwise end up in court including:

breach of contract workplace and employment issues complaints handling in business provision of goods and services commercial disputes Directors or Partners disputes debt personal injury clinical and professional negligence boundary and neighbour disputes disputes with statutory agencies building works

In civil and commercial mediation parties can take solicitors or legal advisers along with them to the mediation. This can help remedy an imbalance of power, and give clients confidence when negotiating.

Legal aid is not available for mediating civil, commercial or Employment disputes.


Workplace/Employment Mediation

Interpersonal Workplace Conflict

Day to day conflicts arise in all walks of life. When a group of people are thrown together and expected to work towards a common goal it is natural that differences will arise. Mostly, team members can work with their managers to find a way forward but sometimes it just isn’t possible without outside help. Recognising this early enough on is a major issue in many organisations.

Interpersonal Mediation between 2 people

In response to a referral, a suitably qualified, impartial mediator will work to manage the dispute. The mediator will meet the 2 parties separately and, if both are in agreement and the case is suitable for mediation, they will attend a joint meeting to see if the matter can be resolved.

Interpersonal Mediation between more than 2 people

Where the conflict involves more than one person the situation will be assessed by the mediator(s) to develop a bespoke solution.

Interpersonal Mediation between teams

Sometimes one team has difficulties with another team. Mediators can help explore the difficulties and manage negotiations between the teams to build co-operative relationships.

Employment Mediation

Once disciplinary and grievance processes are underway employment rights form the basis of negotiations. If emotions are clouding the issues or if costs are an issue, then mediation can provide a confidential and proportionate setting in which to negotiate an outcome. Mediation can be implemented at any stage through disciplinary or grievance and pre-tribunal. In line with government thinking, employment tribunals look favourably on a participant that has offered mediation as a means to resolution or settlement. Because the agreements made are confidential and do not set precedents and the mediation is ‘without prejudice’, the parties are free to explore all possible options for resolving the matter.

Conflict Audit

Sometimes where a dispute manifests is not necessarily the source of the conflict. Blame, avoidance, denial and criticism get in the way of identifying the real problem. In these issues, some mediators have a conflict audit process which seeks to uncover the deeper issues and provide recommendations for remedy.

Compassionate Investigations

Where a matter requires an investigation the effect can damage workplace relationships and create doubt and suspicion each other escalating the problem. In this situation a more compassionate process can be appropriate which is rigorous and challenging without being brutal and destructive. This reduces gossip and rumour-mongering which demotivates staff who are watching from the side-lines.


Family Mediation

When a person’s home life becomes conflicted, the consequences can affect every aspect of their lives. At this time they particularly need support and care that they can trust and rely on.

Parental Separation is a major life event. Like other major life events (new house, new school, bereavement) the adjustment made depends on how it is worked through.

Positively handled, it is an opportunity for growth. We help parents make choices in a considered way so their decisions are right for themselves and their children.

Certain mediators in this field offer a range of family services:

Go Between ServiceAn empathic support service for ex-partners when communication has broken down or become highly confrontational. The service is provided when one or both parties need respite from conflict. A specially appointed intermediary will take the pressure off by tactfully and diplomatically handling the communication regarding children, property or any other ongoing and potentially disruptive issues, allowing parties to concentrate on their own priorities.

Relationship DialogueWhen two parties want completely different futures, no amount of arguing will bring a satisfactory conclusion which in our experience means the best way to find an outcome is to explore the problem through a facilitated dialogue.

Reconciliation MediationWhen couple communication breaks down, breaking up becomes a serious option. However not all relationships end in a parting. With professional help many relationships are salvageable and can go on to be happy and harmonious. Whilst it’s fair to say that finding harmony as a couple can be a challenging process, the alternative break up and division of assets will not come without its own heartache especially where children are involved.

Divorce and Separation MediationExpert mediators can assist the parties to make lasting agreements on practical matters such as property, finance and child contact


Myths about Mediation

1. Both parties need to agree to come to mediation at the outset for it to be a realistic option.

We offer individual appointments to start with. A person can come and explore the possibility of mediation and then, if agreed, we can work to engage the other person

Peaceful Solutions offers a unique engagement tool (The Dialogue Road Map) which results in a very high number of parties engaging in mediation. This is uncommon in the industry where only 30% of those initially contacted return to engage in a full mediation. Peaceful Solution has an 85% success rate in getting both parties to the table.

In the event that joint mediation does not go ahead, it can be very helpful to talk all the issues and possibilities through with a mediator.

2. Where conflict is very high (or trust very low) mediation is unlikely to be suitable.

The skill of the mediator is to create an arena where people can be heard and therefore trust can be built.

3. Mediation is not usually necessary if people can sort things out amicably.

Mediation can help anyone, even those with low conflict, to ensure that they cover all relevant issues and leave with written proposals set out in a format that can be formalised.

4. People need to be willing to compromise in order to be suitable for mediation.

This is the wrong frame of reference. Mediation works by helping people identify needs and generate more options than they thought possible.

5. When people choose mediation they do not have the protection of legal advice.

Mediators always encourage clients to protect their own legitimate self-interest by taking legal advice.

6. Mediation cannot work when there is a power imbalance or difference with regard to financial literacy.

Mediation works to ensure information and options are understood by all, that all decisions are made with time to consider and with appropriate advice.

7. Mediation can only take place after a claim has been made

The sooner a mediator is brought in the better. Using mediation before a claim arises demonstrates a willingness to sort the issues out informally.

EUROPEAN CODE OF CONDUCT FOR MEDIATORS

This code of conduct sets out a number of principles to which individual mediators may voluntarily decide to commit themselves, under their own responsibility. It may be used by mediators involved in all kinds of mediation in civil and commercial matters.

Organisations providing mediation services may also make such a commitment by asking mediators acting under the auspices of their organisation to respect the code of conduct. Organisations may make available information on the measures, such as training, evaluation and monitoring, they are taking to support the respect of the code by individual mediators.

For the purposes of the code of conduct, mediation means any structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a third person – hereinafter “the mediator”.

Adherence to the code of conduct is without prejudice to national legislation or rules regulating individual professions.

Organisations providing mediation services may wish to develop more detailed codes adapted to their specific context or the types of mediation services they offer, as well as to specific areas such as family mediation or consumer mediation.

APPENDIX 6

European Code of Conduct for Mediators

1. COMPETENCE, APPOINTMENT AND FEES OF MEDIATORS AND PROMOTION OF THEIR SERVICES

1.1. Competence Mediators must be competent and knowledgeable in the process of mediation. Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.

1.2. Appointment Mediators must confer with the parties regarding suitable dates on which the mediation may take place. Mediators must verify that they have the appropriate background and competence to conduct mediation in a given case before accepting the appointment. Upon request, they must disclose information concerning their background and experience to the parties.

1.3. Fees Where not already provided, mediators must always supply the parties with complete information as to the mode of remuneration which they intend to apply. They must not agree to act in a mediation before the principles of their remuneration have been accepted by all parties concerned.

1.4. Promotion of mediators' services Mediators may promote their practice provided that they do so in a professional, truthful and dignified way.

2. INDEPENDENCE AND IMPARTIALITY

2.1. Independence If there are any circumstances that may, or may be seen to, affect a mediator's independence or give rise to a conflict of interests, the mediator must disclose those circumstances to the parties before acting or continuing to act.

Such circumstances include:

– any personal or business relationship with one or more of the parties;

– any financial or other interest, direct or indirect, in the outcome of the mediation;

– the mediator, or a member of his firm, having acted in any capacity other than mediator for one or more of the parties.

In such cases the mediator may only agree to act or continue to act if he is certain of being able to carry out the mediation in full independence in order to ensure complete impartiality and the parties explicitly consent.

The duty to disclose is a continuing obligation throughout the process of mediation.

2.2. Impartiality Mediators must at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation.

European Code of Conduct for Mediators

3. THE MEDIATION AGREEMENT, PROCESS AND SETTLEMENT

3.1. Procedure The mediator must ensure that the parties to the mediation understand the characteristics of the mediation process and the role of the mediator and the parties in it.

The mediator must in particular ensure that prior to commencement of the mediation the parties have understood and expressly agreed the terms and conditions of the mediation agreement including any applicable provisions relating to obligations of confidentiality on the mediator and on the parties.

The mediation agreement may, upon request of the parties, be drawn up in writing.

The mediator must conduct the proceedings in an appropriate manner, taking into account the circumstances of the case, including possible imbalances of power and any wishes the parties may express, the rule of law and the need for a prompt settlement of the dispute. The parties may agree with the mediator on the manner in which the mediation is to be conducted, by reference to a set of rules or otherwise.

The mediator may hear the parties separately, if he deems it useful.

3.2. Fairness of the process The mediator must ensure that all parties have adequate opportunities to be involved in the process.

The mediator must inform the parties, and may terminate the mediation, if:

– a settlement is being reached that for the mediator appears unenforceable or illegal, having regard to the circumstances of the case and the competence of the mediator for making such an assessment, or

– the mediator considers that continuing the mediation is unlikely to result in a settlement.

3.3. The end of the process The mediator must take all appropriate measures to ensure that any agreement is reached by all parties through knowing and informed consent, and that all parties understand the terms of the agreement.

The parties may withdraw from the mediation at any time without giving any justification.

The mediator must, upon request of the parties and within the limits of his competence, inform the parties as to how they may formalise the agreement and the possibilities for making the agreement enforceable.

4. CONFIDENTIALITY

The mediator must keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled by law or grounds of public policy to disclose it. Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission, unless compelled by law.

Survey report

Workplace mediation How employers do it

APPENDIX 7

Contents

Summary of key findings 2

Employers’ use of mediation 4

Business case for mediation 6

What inhibits the wider use of mediation? 8

Managing mediation 9

Promoting mediation 13

Conclusions 14

Background 16

Reference 17

Workplace mediation 1

Summary of key findings

This report is based on a survey exploring how organisations use mediation. There were a

total of 766 responses, including 327 by people whose organisations had used mediation.

It is the responses of these 327 people that are mainly reflected in this report. However,

those people whose organisations have no experience of mediation were asked why they

thought this was, and their responses on this issue are also included in the report.

Handling conflict

• The most widely adopted practice for handling

conflict is training of HR managers (80%).

• About half of respondents say that an external

mediator is used when needed.

• Two in five say that line managers are trained to

deal with conflict.

• Thirty-five per cent of organisations train either

managers, employees, or employee representatives

to act as mediators.

• Fifty-one per cent use external mediation.

Effectiveness of different methods of resolving

conflict

• Asked to identify up to three methods most likely

to be effective in resolving disputes, more than nine

out of ten organisations see informal discussion

between those affected as one of the most

effective methods.

• Mediation is seen as the next most effective

method (76%), while almost two out of three see

grievance procedures as among the most effective.

• Compromise agreements are regarded as one of the

most effective methods by 23% of respondents.

Employers’ use of mediation

• Two out of three respondents report that mediation

has been used between one and five times in the

last 12 months.

• Sixteen per cent have not used it in the last three

years and 17% have used it more than five times.

• Nearly half of respondents say their organisation

is now making more use of mediation than it did

three years ago, and a further 20% did not make

use of mediation at all three years ago.

Business benefits

• The benefit most frequently mentioned is that of

improving relationships between employees (83%),

followed by reducing or eliminating the stress

involved in using more formal processes (71%).

• A majority of organisations that currently make use

of mediation do so primarily for what might be

called ‘soft’ or cultural reasons.

• Almost half of respondents (49%) see mediation

as giving benefit in avoiding the costs of defending

employment tribunal claims.

Which issues are the most suitable for mediation?

• The most suitable issue for mediation is judged to

be relationship breakdown.

• Bullying and harassment come second, with three

in four respondents seeing them as either very

suitable or suitable to be dealt with by mediation.

• Discrimination issues are also judged suitable

or very suitable for mediation by a majority of

respondents.

What are the outcomes of mediation?

• Mediation is said to follow an actual or threatened

employment tribunal (ET) claim in 16% of instances,

but was not related to a claim in 83% of cases.


• In 9% of instances where mediation was used, ET

claims were withdrawn.

• In more than half of cases, both parties stayed in

the same job following mediation.

• In almost nine out of ten cases, respondents

feel that the issues the mediation was designed

to address were resolved either partly (58%) or

completely (30%).

Why don’t more organisations make use of

mediation?

• Of the 766 respondents who accessed the survey,

more than half (57%) say their organisation had no

experience of using mediation to deal with issues

affecting individual employees.

• Nearly two out of three of these respondents say

they have no problems, or none that would suit

mediation.

• One in ten respondents don’t believe it’s appropriate

to involve third parties in disputes at work.

• Significant minorities either feel mediation is too

expensive or don’t know any mediators, or an

organisation that helps with mediation.

What inhibits organisations that do use

mediation from making more use of it?

• Cost is seen as the biggest single issue inhibiting

the greater use of mediation.

• Lack of trust by employees is also an important

factor referred to by 16% of respondents.

• Lack of understanding about the process (21%),

lack of interest by senior management (13%) and

difficulties in finding a mediator (12%) are also

significant factors.

• Resistance by line managers is seen as inhibiting the

use of mediation by 12% of respondents.

Building mediation into workplace procedures

• Fewer than one in ten organisations currently

incorporates mediation in the employment contract.

• Grievance and disciplinary procedures are the main

instruments by which organisations communicate

their policy towards mediation.

• Stand-alone mediation policies are relatively

unusual (13%).

• Mediation is written into policies on diversity,

harassment or bullying in nearly half (46%) of

organisations.

• Two in five respondents see it as undesirable for an

employee to be accompanied during mediation.

Costs of using mediation

• Two in five organisations have incurred costs in

using mediation, in addition to management time;

more than half have not.

• Of those organisations that have incurred costs in

using mediation, 75% say they have been incurred

mainly in using a mediation service, while the

majority of the rest (13%) say they were incurred

mainly in taking legal advice.

• Others say costs were incurred mainly in training

mediators (5%), use of accommodation at a neutral

venue (5%) and travel expenses (2%).

Use of external mediation

• More than half of organisations (56%) have used

an external mediator; 36% have not.

• Almost nine out of ten respondents that have used

an external mediator are either very (47%) or fairly

(41%) satisfied with the service provided.

• Three-quarters obtained their services through

advice from or contact with either Acas (27%), a

commercial organisation specialising in mediation

(25%) or a business contact or colleague (25%).

• One in four respondents used a professional

mediator from Acas, one in two used an

organisation other than Acas, while 10% used an

HR consultant.

Promoting mediation

• Twenty-five per cent of respondents say that

communicating the aims and benefits of mediation

to all staff is the single most important thing

that could be done to promote the wider use of

workplace mediation.

• Other factors identified by respondents are training

managers in the use of mediation (15%), with a

further 7% opting for (unspecified) training.

• Eleven per cent of respondents focus on the need

to raise awareness of how to access mediation,

with a further 6% emphasising the importance of

easy access to mediation.


Employers’ use of mediation

Managing conflict

Respondents were asked which practices are adopted

in their organisation for handling people problems

and conflict.

Table 1: Which practices are adopted in your organisation for handling people problems and conflict?

%

HR managers are trained to deal with 80conflict

An external mediator is used when 51required

Line managers are trained to deal 43with conflict

An investigator is appointed to 27report on an employment conflict

Employees are trained to act as 17mediators

Managers are trained to act as 17mediators

Employee representatives are trained 12to act as mediators

An independent third party considers 10claims… (arbitration)

By far the most widely adopted practice for handling

conflict is training of HR managers (80%). About half

of respondents say that an external mediator is used

when required, and two in five say that line managers

are trained to deal with conflict. Investigations to

establish the facts are used by more than one in four

organisations, and arbitration by one in ten.

Significant minorities of respondents reported that

managers (17%), employees (17%) and employee

representatives (12%) are trained to act as mediators.

These are each methods of which the public sector

appears to make significantly more use than the

private or voluntary sectors.

Further analysis of the responses shows that 35% of

organisations train either managers, employees or

employee representatives to act as mediators, while

15% undertake such training and also use an external

mediator when required.

As a result of their experience of mediation, 59% of

organisations have provided additional training for

managers and 16% for employee representatives.

Sixty-three per cent have revised disciplinary or

grievance procedures, or both.

Frequency with which mediation is used

Table 2: On how many occasions in the last 12 months have individual issues been referred to mediation?

%

None 16

1–5 66

6–10 12

11–15 2

16–25 2

26–50 1

50+ –

Asked on how many occasions individual issues have

been referred to mediation in the last 12 months, two

out of three respondents report that mediation has

been used between one and five times. Other

responses are almost evenly split between those who

report that no issues have been referred to mediation,

and those reporting issues have been referred on more

than five occasions. Unsurprisingly, larger organisations

are more likely to report more frequent references.


Changes in use of mediation How often is mediation likely to be suitable?

Table 3: Looking back over the last three years, how much use would you say your organisation now makes of mediation?

%

A lot more use 15

Slightly more use 32

About the same use 21

Slightly less use 2

A lot less use 2

Organisation did not use three years ago 20

Organisation has abandoned the use of mediation 1

Nearly half of respondents say their organisation is now

making more use of mediation than it did three years

ago; a further 20% did not use mediation three years

ago; while only 4% say they are now making less use of

it. Two in five respondents in the public sector report

making slightly more use of mediation, while one in six

report making a lot more use of it.

Table 4: When workplace problems arise, how often do you believe mediation is likely to be suitable?

%

In most cases 21

In some cases 61

In only a minority of cases 18

Three in five respondents see mediation as suitable for

resolving workplace problems in some cases, with the

rest fairly evenly divided between those who see it as

suitable in most cases and those who see it as suitable

in only a minority of cases. Those where the most recent

mediation had resolved the issue either completely or in

part were more likely to say that mediation was suitable

in most cases.


Business case for mediation

What are the benefits of using mediation?

Table 5: What are the benefits of using mediation?

%

To improve relationships between 83employees

To reduce or eliminate the stress involved in using more formal 71 processes

To retain valuable employees 63

To reduce the number of formal 57grievances raised

To develop an organisational culture that focuses on managing and 55 developing people

To avoid costs in defending 49employment tribunal claims

To reduce sickness absence 33

To maintain confidentiality 18

The benefit most frequently mentioned is that of

improving relationships between employees (83%),

followed by reducing or eliminating the stress involved

in using more formal processes (71%). Together with

developing an organisational culture that focuses on

managing and developing people (55%), this is

evidence that a majority of organisations that currently

make use of mediation do so primarily for what might

be called ‘soft’ or cultural reasons. However, almost half

of respondents (49%) see benefit in avoiding the costs

of defending employment tribunal claims, while 57%

say that mediation reduces the number of formal

grievances raised.

One in three of all respondents say that a benefit of

mediation is to reduce sickness absence, while the

proportion in the public sector who say this is almost

twice that in other sectors. Maintaining confidentiality is

seen as a benefit by 37% of respondents in

organisations employing 50 or fewer employees, but by

only 18% in organisations employing between 5,000

and 25,000 and as few as 4% in organisations

employing more than 25,000.

Organisations that use mediation to develop culture or

relationships are more likely to report that their most

recent experience of mediation has led to the issue

being resolved, either completely or in part.

Effectiveness of mediation

Table 6: Which of the following methods are most likely to be effective in resolving workplace conflict?

%

Informal discussion between those 94affected

Mediation 76

Grievance procedures 64

Compromise agreement 23

Acas conciliation/COT3 6

Employment tribunal hearing 2

In terms of their effectiveness in resolving conflict,

more than nine out of ten organisations see informal

discussion between those affected as one of the

methods most likely to be effective. Mediation is the

next most effective method (76%), while almost two

out of three see grievance procedures as among the

most likely to be effective. Compromise agreements

are regarded as effective by 23% of respondents,

6% identified Acas conciliation and 2% tribunal

hearings as effective.


Issues most suitable for mediation What are the outcomes of mediation?

Table 7: What issues is mediation most suitable for dealing with?

% saying suitable or very suitable

Relationship breakdown 86

Bullying or harassment 74

Discrimination on grounds of race 55

Discrimination on grounds of sex 54

Other forms of discrimination 48

Conditions of employment 36

Discipline 31

Pay 28

Dismissal 26

Table 8: What actions were taken following mediation?

%

Both parties stayed in the same job with partial resolution of the issue

37

Both parties stayed in the same job with full resolution of the issue

27

One or both parties left the organisation 18

One or both parties withdrew a claim to an employment tribunal 9

One or both parties moved to another job within the organisation

7

One or both parties made a claim to an employment tribunal 3

One or both parties signed a compromise agreement and remained in the organisation

3

Other 8 There is a clear hierarchy of issues in terms of their

perceived suitability to be dealt with by a process of

mediation. Outstandingly the most suitable for

mediation is judged to be relationship breakdown.

This underlines the value of mediation as a method of

leading parties to re-evaluate their feelings towards

one another, where financial compensation is less

likely to be appropriate. Bullying and harassment come

second, with three in four respondents seeing them as

either very suitable or suitable to be dealt with by

mediation. Discrimination issues are also judged

suitable or very suitable for mediation by a majority of

respondents. Issues about pay and conditions are in

general less likely to be seen as suitable for mediation.

The scores for discipline and dismissal are particularly

interesting. Managers are unlikely to want to surrender

their discretion in relation to disciplinary issues where

they believe that a point of principle is at stake.

However, the line between disciplinary and grievance

issues may in specific instances become blurred, in which

case the employer may prefer to tackle underlying

relationship issues by means of mediation rather than

impose a disciplinary solution. Where an employee has

been dismissed, or is threatened with dismissal, the

relationship will often either be at an end, or levels of

mutual trust will be very low, so that mediation may be

considerably less likely to have a positive outcome.

In almost nine out of ten cases, respondents feel that

the issues the mediation was designed to address were

resolved either partly (58%) or completely (30%).

Complete resolution of issues is reported in a higher

proportion of cases where internal mediation is used.

Although mediation was said to follow an actual or

threatened employment tribunal (ET) claim in only

16% of instances, in 9% of instances ET claims were

withdrawn, suggesting that, in the majority of those

cases where mediation is used, it is effective in

resolving issues that would otherwise have had to be

resolved at a tribunal.

It is notable that, in more than half of cases, both

parties stayed in the same job following mediation,

with either full or partial resolution of the issue.


What inhibits the wider use of mediation? Why don’t more organisations make use of

mediation?

Of those respondents who accessed the survey, more

than half (57%) say their organisation has no experience

of using mediation to deal with issues affecting

individual employees (excluding statutory conciliation by

Acas). These respondents were asked why they thought

their organisation had not used mediation.

Table 9: Why don’t some organisations use mediation?

%

Haven’t had any problems that 49would suit mediation

Considering using mediation 23

Too expensive 15

Haven’t had any problems 15

Don’t know any mediators 15

Don’t believe it’s appropriate to 11involve third parties

Don’t believe it would work 4

Not interested in mediation 3

Nearly two out of three respondents say they have no

problems, or none that would suit mediation. Some of

these organisations are presumably either small, or

particularly well managed, or lucky. In other cases,

respondents may simply have failed to recognise issues

that could usefully have been dealt with by mediation.

Other responses suggest more principled objections to

mediation, including one in ten respondents who don’t

believe it’s appropriate to involve third parties in disputes

at work. However, significant minorities either feel

mediation is too expensive or don’t know any mediators,

or an organisation that helps with mediation (15% in

each case). Reliable information and advice about sources

of mediation could clearly be helpful in these latter cases.

Encouragingly, more than one in five organisations

that have not used mediation say they are considering

doing so.

What inhibits organisations from making more

use of mediation?

Table 10: What inhibits organisations from making more use of mediation?

%

Cost of using mediation 22

Lack of understanding about the 21 process

Lack of trust in mediation process by 16employees

Lack of interest by senior 13management

Difficulties in finding a mediator 12

Resistance from line managers 12

Risk of undermining management’s 9ability to use disciplinary sanctions

Lack of support from workforce/ 5trade union

Respondents whose organisations have experience of

using mediation were asked if they are inhibited from

making more use of it by a range of factors.

Cost is seen as the biggest single issue inhibiting the

greater use of mediation, but is significantly more

important in the public and voluntary sectors (27%)

than in the private sector (15%). Lack of trust by

employees is also an important factor (referred to by

16% of respondents) – substantially more important

than lack of support from the workforce or trade

union (5%). Where employees lack trust in the

process, mediation is less likely to have been seen as

successful in resolving issues referred to it. Employee

mistrust in the mediation process is a significantly

more influential factor in the public sector (20%) than

in the private sector (12%).

Lack of understanding about the process (21%), lack

of interest by senior management (13%) and

difficulties in finding a mediator (12%) are other

significant factors inhibiting the use of mediation.

Resistance by line managers is seen as inhibiting the

use of mediation by 12% of respondents.


Managing mediation

Building mediation into workplace procedures

Table 11: Is the use of mediation written into employment contracts or procedures?

%

Grievance procedures 58

Procedures on diversity, 46harassment or bullying

Disciplinary procedures 36

Employee handbook 31

Stand-alone mediation policy 13

Statement of employment 8particulars/employment contract

Collective agreement 4

The Gibbons Review recommended that employer

organisations should consider encouraging the use of

mediation as a standard provision in contracts of

employment. Respondents were asked if the use of

mediation is written into employment contracts or

workplace procedures.

Fewer than one in ten organisations currently

incorporate mediation in the employment contract.

Grievance and disciplinary procedures are the main

instruments by which organisations communicate their

policy towards mediation. Stand-alone mediation policies

are relatively unusual (13%). This suggests that most

employers still see mediation primarily as a response to

conflict, rather than as an integral part of the

management culture.

It is, however, encouraging that mediation is seen to be

a natural component of policies on diversity, harassment

or bullying in nearly half (46%) of organisations. This is

particularly the case in the public sector, where 62% of

respondents say mediation is written into such

procedures. These positive findings reinforce the priority

given to the same issues in response to the question

about which issues are most suitable to be dealt with by

mediation (see Table 7).

Recent experience of mediation

Respondents were asked about their most recent

experience of mediation. Mediation was used in

response to the threat of an ET claim in only 8% of

cases, and after an ET claim has been lodged with the

employer in another 8% of cases. In the remaining 83%

of cases, mediation was not related to an ET claim at all.

Table 12: Did the most recent experience of mediation take place…?

%

In response to the threat of an 8employment tribunal

After an ET claim had been 8lodged by the employee

It was not related to an ET claim 83

In three out of four cases, use of mediation is initiated

by the HR department, with line managers responsible

for initiating its use in 12% of cases. In just over half of

all cases, the mediation is between one or more

employees and their manager.

The amount of time spent on the process of mediation

is fairly evenly distributed between cases where

mediation took less than a day (22%), one day (28%),

two days (22%) and longer than two days (28%).

Mediation tends to take more time in larger

organisations, in the public sector, and where an

external mediator is used.

Table 13: How much time is spent on the process of mediation itself?

%

Less than a day 22

1 day 28

2 days 22

More than 2 days 28


Costs of using mediation

Two in five organisations incur costs in using mediation,

in addition to management time.

Table 14: How are costs incurred in relation to mediation?

%

Use of a mediation service 76

Legal advice 13

Training mediators 5

Cost of accommodation at a neutral venue 5

Travel expenses 2

Of those organisations that incur costs in using

mediation, 75% say they are incurred mainly in using a

mediation service, while the majority of the rest (13%)

say they are incurred mainly in taking legal advice.

Others say costs are incurred mainly in training

mediators (5%), use of accommodation at a neutral

venue (5%) and travel expenses (2%).

By way of comparison, the CIPD survey of conflict at

work in 2007 found that:

• businesses spend almost ten days on average

dealing with an individual tribunal claim (including

7.7 days senior managers’ time)

• 33% of employers also reported non-financial

negative effects of claims.

Line managers’ attitudes

In answer to a question about how line managers feel

about the use of mediation to resolve workplace issues,

responses are fairly evenly split between those saying

managers support the use of mediation (29%), support

its use in principle but can be reluctant to agree in

practice (29%) and have a neutral stance (24%). Just

2% report that line managers are hostile to the use of

mediation. Organisations where line managers support

the use of mediation are more likely to have made

increased use of mediation over the last three years.

Use of external mediation

More than half of respondents (56%) say they have

used an external mediator. Almost nine out of ten

respondents that have used an external mediator are

either very (47%) or fairly (41%) satisfied with the

service provided.

Of those who use an external mediator, three-quarters

obtain their services through advice from or contact

with either Acas (27%), a commercial organisation

specialising in mediation (25%) or a business contact

or colleague (25%). Thirteen per cent of those who

use an external mediator obtain their services through

a professional adviser, such as a lawyer.

Having obtained advice about where to find an

external mediator, one in four respondents use a

professional mediator from Acas, one in two use an

organisation other than Acas, 10% use an HR

consultant, 6% use a lawyer, 2% use an independent/

trained mediator, and 3% use someone else.

Should employees be accompanied during

mediation?

Table 15: Is it desirable for an employee to be accompanied during mediation?

%

Yes, by a trade union representative 15

Yes, by another employee representative 19

Yes, by a friend or colleague 25

Yes, by a lawyer 2

No, it is undesirable 39

One of the practical benefits seen by respondents in

using mediation (see Table 5) is its relative informality. If

employees are accompanied in the mediation process,

this may add to the degree of formality, and to the

time and costs involved.

Not surprisingly, therefore, two in five respondents see

it as undesirable for an employee to be accompanied

during mediation. Of the others, most believe an

employee should be accompanied by a trade union or

other employee representative, while a significant

minority (25%) believe they should be accompanied by


Note: figures represent mean scores, where ‘strongly agree’ scores 5 and ‘strongly disagree’ scores 1.

a friend or colleague. Only a tiny percentage (2%)

believe that they should be accompanied by a lawyer,

with none in either the public sector or the larger

organisations (employing more than 5,000) responding

in this way.

Attitudes towards mediation

Table 16: Attitudes towards mediation

Mediation improves line managers’ 3.8ability to manage conflict.

There is a clear business case for 4.1organisations to use mediation.

More widespread use of mediation 3.7will reduce the volume of ET claims.

Use of internal mediation has a 3.9positive impact on workplace culture.

Some employees see mediation as 2.8denying them access to justice.

Some line managers see mediation 3.1as interfering with their authority.

Mediation produces win–win solutions that leave both parties 3.6 satisfied.

Use of mediation shows that organisations are committed to 4.0 recognising individual dignity.

Mediation improves parties’ understanding of each other’s 4.2 position.

Attitudes towards mediation among organisations with

experience of using mediation were very positive.

Strongest levels of agreement were for the statements

that ‘Mediation improves parties’ understanding of each

other’s position’, ‘There is a clear business case for

organisations to use mediation’ and ‘Use of mediation

shows that organisations are committed to recognising

individual dignity and showing respect for their

employees’.

The percentage of respondents agreeing with the

suggestion that ‘some employees see mediation as

denying them access to justice’ was smaller than that

who disagreed. Attitudes among the smallest

organisations, employing fewer than 50 people, were

consistently more positive than in larger organisations.

Respondents in private sector services were significantly

less likely than those in other sectors to believe that

mediation improves parties’ understanding of each

other’s position.

The significant level of support for the proposition that

‘Mediation produces win–win solutions that leave both

parties satisfied’ is reflected in the high percentage of

respondents who said that both parties were able to

stay in their jobs following mediation (see Table 8).

Learning about good practice

Respondents were asked what are the most important

lessons learned about the use of mediation or about

running a mediation scheme.

The most important lesson for most is the need for all

parties to buy in to the process of mediation. One

respondent commented on ‘the need to have line

management buy-in to the mediation scheme and

senior management support to ensure mediators are

trained and released from normal duties to carry out

mediation’.

There was also strong support for the need for

mediators to be independent/objective/impartial and

well trained.

Some respondents advised against assuming that

mediation could be an all-purpose solution, still less a

‘quick fix’:

‘It can be very successful in certain situations but not all

issues can be dealt with by mediation.’

‘It is only an additional tool available to resolve

workplace conflict and is not something that can be

offered wholesale in every case. The climate of the

organisation needs to be appropriate already: it will not

work if…there is an undercurrent of mistrust.

Something to launch when things are going well, not

when they start to go, or are already, not healthy!’


However, other respondents felt the most important

lesson they had learned was about the effectiveness of

mediation as a means of resolving disputes:

‘It works and brings about cost-effective resolutions.’

‘It encourages individuals to understand other people’s

viewpoint and knowledge of the impact your own

actions have on others.’

‘Mediation helps to keep the channels of

communication open so that they do not escalate to

formal procedure and costly claims.’

‘How powerful it can be in achieving a resolution and

leaving individuals with their dignity intact.’

What works?

Other respondents offered advice on ‘what works’,

based on their own experience of managing mediation:

• ‘Use the process early – leaving it until there is no

other course of action generally means that trust

has broken down and mediation is unlikely to be

effective.’

• ‘Set the ground rules about behaviour during the

meeting.’

• ‘Trust and confidentiality are crucial.’

• ‘As a mediator, leave it to the parties to solve their

own problems.’

• ‘More role-playing with real situations during

training.’

• ‘Ensure you continue to promote the services

on a regular basis – try different methods of

communication to ensure messages are heard.’

The corollary of the need for all parties to buy in to

mediation was the insistence that mediation must be

voluntary. ‘There is no point in anyone taking part if

they feel they have been “conscripted” – they need to

understand the process and willingly engage.’ The

importance of frank discussion, honesty and openness

were underlined.

The basic argument for making use of mediation was

succinctly put by one respondent:

‘A lot is gained from people talking about their

problems before an employee with a grievance goes to

the law. Many conflicts are escalated by external

involvement. When employees go for external advice

additional claims are always added… Too much

formalisation leads to escalation of problems, which

leads to stress for all concerned and costs.’


Promoting mediation

Table 17: What is the single most important thing that could be done to promote the wider use of workplace mediation?

%

Communicate aims/benefits to 25all staff

Train managers to use mediation 15

Raise awareness of how to access 11mediation

Emphasise benefits of early 8intervention in solving grievances

Improve quality of/access to training 8for mediators

Training (unspecified) 7

Role-play/case studies on positive 7aspects

Clear explanation of mediation 7written into policy

Ensure access to mediation is easy/ 6cheap

Endorsement from senior 6management

Respondents were asked, ‘What is the single most

important thing that could be done to promote the

wider use of workplace mediation?’ These responses are

grouped together into common themes. A full 25%

opted for communicating the aims and benefits of

mediation to all staff. Several people commented on the

need for employers to raise awareness and

understanding of mediation, and actively promote it as

a means of resolving issues. This underlines the need for

employers to get the message across to their workforce

– starting with managers – at all levels if they want to

improve take-up.

The next most important factor identified by

respondents is training managers in the use of

mediation (15%), with a further 7% opting for

(unspecified) training. One respondent suggests the

need to ‘improve the access to training of HR and/or

line managers in mediation techniques. If a professional

body like the CIPD ran mediation courses that were of a

recognised and respected standard, then selling

mediation within an organisation would be easier and

employees would have more confidence in the process.’

Eleven per cent of respondents focus on the need to

raise awareness of how to access mediation, with a

further 8% emphasising the importance of easy access

to mediation. This suggests that a reinforced Acas

helpline, drawing attention to the role of mediation and

giving information about providers, will be an effective

way of helping many employers and increasing the use

of mediation.

A number of respondents suggest that the single most

effective method of promoting mediation is to build

mediation into existing procedures for dealing with

grievances and disputes, or bullying and harassment.

However, there are also concerns that mediation

should not simply be seen as part of a formal process,

but part of the company culture and ‘the framework

of people management, not an isolated process’.

One person suggested that the important thing is to

‘ensure that mediation is part of the language used in

conditions of employment [and] insist it is a stage

before formal grievance’. A number of respondents

draw attention to the value of informal approaches to

resolving conflict, and the need to create a willingness

to work outside set formulae.

Several responses point to the need for mediation to be

used at an early stage and not be seen primarily as a

means of discouraging recourse to an employment

tribunal. One believes that mediation ‘is still considered

as something of a black art…and is commonly believed

to relate to tribunals only’, while another stresses that ‘it

is a stand-alone process [and] not a stepping stone on

the way to a tribunal’. Only a handful of respondents

suggest that mediation should be made compulsory by

changing existing legislation.


Conclusions

There is strong support from employers for the use

of workplace mediation. The business benefits

include retaining valuable employees and avoiding

the costs of defending tribunal claims. Mediation can

be seen as simply a better way of dealing with

workplace conflict than other, more formal processes

and is a key element in the conflict resolution

process for a majority of respondents. But

importantly, mediation can also contribute to

building an organisational culture that focuses on

managing and developing people. It is seen as a

means of improving relationships between colleagues

and can offer a solid basis for sustainable high-

performance working.

The survey finds strong support for the use of both

internal and external mediation. The CIPD survey of

conflict resolution in 2007 found that one in five

employers uses external mediation, including

through Acas. It might have been expected that

there would be a link with organisation size, with

smaller employers more dependent on using external

mediators, but this appears to be so only in relation

to the largest employers (those employing more than

25,000 people) and those employing between 50

and 250 people, which make significantly less use of

external mediation.

The survey shows that employers’ use of mediation is

increasing. Few appear to have principled objections

to its use, though a small minority don’t see it as

appropriate to involve third parties. Concerns about

costs and the ability to identify a suitable mediator

put off some organisations from considering using

mediation. It is hoped that such concerns will be

addressed by the increased resource that the

Government is committing to reinforce mediation

and conciliation services. Lack of understanding

about the process (21%) and lack of interest by

senior management (13%) are other significant

factors that are being addressed by improved

information and support (including this research).

The survey doesn’t make possible any final

judgement about differences in the approach to

mediation as between the private and public sectors.

However, the proportion of those respondents who

completed the survey and who work in the public

sector is 43% – significantly above the one-third of

CIPD members who belong in the public sector.

It seems likely that the private sector relies more

heavily on HR managers to resolve internal conflict,

and makes correspondingly less use of mediation,

than the public sector. If so, this might reflect the

fact that professionalism in HR has come relatively

late to many parts of the public sector, leading some

employees to be reluctant to trust management

processes for dealing with conflict. Management

resistance to third-party intervention may also be

greater in the private sector.

Mediation should not be seen as a universal default

option for tackling the whole gamut of workplace

issues. One in five respondents thinks it likely to be

suitable in most cases, while three-fifths see it as

likely to be suitable in some cases. Employers also

see it as more suitable for dealing with some issues

than others, with relationship breakdown, bullying

and harassment and discrimination issues high up

the list of those where mediation is likely to be

helpful. It is used in relation to disciplinary issues but

not to the same extent as for grievances. And clearly

some care may be needed to ensure that mediation

does not undermine disciplinary procedures,

particularly where issues of principle are seen to be

involved.

This underlines the need for employers to look

broadly at a spectrum of methods for managing

conflict, including training HR and line managers to


deal with conflict. Informal discussion between those

affected, or ‘dialogue’, is seen by survey respondents

as the single most important method of resolving

workplace conflict. It is when dialogue has broken

down that mediation needs to be considered, alongside

other options including settlements following Acas

conciliation or compromise agreements.

The findings of this survey represent a challenge to

the Government’s aspiration to develop mediation as

a preferred alternative to employees making claims to

employment tribunals. Although many employers

already use mediation and see it as a means of

discouraging tribunal claims, according to the survey

most current mediations have no relationship to any

actual or threatened tribunal claim.

If mediation is to have a significant impact on the

volume of tribunal claims, therefore, it will have to

develop in one of two main ways. One is by

identifying potential tribunal claims, either before

they reach the tribunal service or before a hearing

takes place, and offering claimants and employers

mediation as a more attractive alternative. This has to

be a voluntary process, both to protect individuals’

statutory rights and because mediation will not

otherwise be effective. This survey is helpful in

indicating those issues where mediation is seen as

particularly likely to be effective.

The second route to building up mediation as an

effective substitute for tribunal claims is for employers

to adopt mediation as the core of their conflict

management processes, and use it to reinforce a

trust-based culture, which will mean that few if any

disputes reach a critical stage. Short-term results

cannot be expected in this area, but the CIPD will

continue to promote the value of a mediation culture

as a component of effective people management and

leadership.


Background Mediation has been defined as a form of dispute

resolution in which a neutral third party, from inside

or outside the workplace, helps people reach a

mutually acceptable agreement. Mediation can be

distinguished from arbitration, where an independent

third party considers claims made by each side and

produces an opinion based on the strength of their

respective cases. Mediators don’t impose a solution,

but help the other parties settle their differences on

their own terms.

The Gibbons Review of workplace dispute resolution

published in March 2007 recommended the use of

mediation and other forms of alternative dispute

resolution to settle disputes at an early stage. The

review challenged employer organisations to promote

early resolution as a management tool and provide

advice, guidance and training to empower managers

to resolve disputes in the workplace; and to improve

understanding and awareness levels among their

members of the value of third-party mediators to help

resolve internal workplace disputes.

As part of its response to Gibbons, the CIPD is

working with Acas on research to fill gaps in current

knowledge about mediation. This will include case

studies of the use of mediation in both private and

public sectors, to help in developing guidance for

employers on good practice.

Reference CHARTERED INSTITUTE OF PERSONNEL AND

DEVELOPMENT. (2007) Managing conflict at work

[online]. Survey report. London: CIPD. Available at:

http://www.cipd.co.uk/NR/rdonlyres/2A206FFD-CF79

4F2A-9B8A-FA7F2A05CE07/0/manconflwrk.pdf

[Accessed 16 May 2008].

As a first stage, the CIPD has conducted an online

survey exploring how organisations use mediation,

what they see as the benefits, factors influencing its

use and the attitudes of employers and employees. To

get an informed response, the survey was targeted at

CIPD members and other people who have some

experience of the use of mediation in their

organisation.

A total of 766 people attempted to complete the

survey, of whom 327 said their organisation had

experience of using mediation to settle workplace

disputes. It is primarily the responses of those 327

people with experience of mediation to draw on that

are reflected in this report. However, those

respondents who said their organisation had no such

experience were asked why they thought this was the

case, and their responses are shown in Table 9.

The CIPD is very grateful to all those people who

downloaded the survey and to those mediation

bodies that encouraged their clients to download the

survey. They have all helped towards building up a

unique picture of employers’ current use of mediation

in the UK. Particular thanks go to Acas, who

contributed substantially to the design and

implementation of the surveys, drawing on their

unparalleled experience in the area of conflict

resolution.


We explore leading-edge people management and development issues through our research.

Our aim is to share knowledge, increase learning and understanding, and help our members

make informed decisions about improving practice in their organisations.

We produce many resources on managing conflict at work including guides, books, practical

tools, surveys and research reports. We also organise a number of conferences, events and

training courses. Please visit www.cipd.co.uk to find out more.

Chartered Institute of Personnel and Development 151 The Broadway London SW19 1JQ Tel: 020 8612 6200 Fax: 020 8612 6201 Email: [email protected] Website: www.cipd.co.uk

Incorporated by Royal Charter Registered charity no.1079797 Issu

ed:

June

200

8 Re

fere

nce:

442

7 ©

Cha

rter

ed In

stitu

te o

f Pe

rson

nel a

nd D

evel

opm

ent

2008

APPENDIX 8

USEFUL WEB LINKS

1. THE ADVISORY, CONCILIATION AND ARBITRATION SERVICE (ACAS)

ACAS aims to improve organisations and working life through better employment relations. It is a statutory body established by the UK Employment Protection Act 1975.

HTTP://WWW.ACAS.ORG.UK

ACAS NATIONAL (Head Office)Euston Tower, 286 Euston Road, London NW1 3JJ.Tel: 08457 38 37 36

HTTP://WWW.ACAS.ORG.UK

2. CHARTERED INSTITUTE OF PERSONNEL DEVELOPMENT (CIPD)

The Chartered Institute of Personnel and Development (CIPD) is the world's largest Chartered Human Resources and development professional body. As an internationally recognised brand with over 135,000 members, we pride ourselves on supporting and developing those responsible for the management and development of people within organisations.

HTTP://WWW.CIPD.CO.UK

Chartered Institute of Personnel and Development151 The Broadway, London, SW19 1JQPhone +44 (0) 20 8612 6200 Fax +44 (0) 20 8612 6201

3. TRADES UNION CONGRESS (TUC)

The TUC has 54 affiliated trade unions representing 6.2 million working people from all walks of life, they campaign for a fair deal at work and for social justice at home and abroad. They also negotiate in Europe, and at home build links with political parties, business, local communities and wider society.

APPENDIX 8

HTTP://WWW.TUC.ORG.UK

Trades Union CongressCongress HouseGreat Russell StreetLondonWC1B 3LSTel: 020 7636 4030Fax: 020 7636 0632

WEBSITES

HTTP://WWW.UKREGISTEROFMEDIATORS.CO.UK/

HTTP://WWW.CIVILMEDIATION.ORG/

HTTP://WWW.CIVILMEDIATION.JUSTICE.GOV.UK/

HTTP://WWW.CEDR.COM/

HTTP://WWW.PROFESSIONALMEDIATOR.ORG/ACCREDITATION.PHP

HTTP://WWW.REGENTS.AC.UK/

HTTP://WWW.CIPD.CO.UK/NR/RDONLYRES/3E97B067-3DB5-421C-9CB3-3309C397F4CA/0/MEDIATIONARTICLECIPDWINTER2010NEWSLETTER.PDF

HTTP://WWW.EMPLOYMENTTRIBUNALS.GOV.UK/PUBLICATIONS/DOCUMENTS/ANNUAL_REPORTS/ETSAR05-06.PDF

benefits of using mediation in your business · 4. mediation in business and employment law -...

Documents