Dispute resolution in Employment cases

Mediation is a process where the parties to a dispute agree to use the services of a neutral third party - the mediator - to help resolve the dispute in a fair and impartial manner. The mediator helps the parties negotiate a solution to their dispute. Unlike a court hearing where the judge makes a decision as to who wins and who loses, the mediator does not make any decisions or decide who wins or loses. The mediator merely facilitates a discussion or negotiation between the parties that empowers them to reach a settlement. Mediations are much less formal and the voices of the parties are always heard. Mediations tend to look forward and embrace a resolution-focused approach.

By contrast the Employment Tribunal works similarly to a court. Its process is adversarial and follows a formal pattern that is based on legal rules and procedures. Tribunals tend to focus on past conduct and typically address issues like unfair dismissal, discrimination and redundancy. The tribunal will make a decision which is imposed on the parties.  The procedure is cumbersome, lengthy and tribunal cases often are as expensive as lengthy court hearings.

Mediation Success Rate 

Statistics show that 85% of all mediated cases resolve at or shortly after the day of the mediation, so the process works well. For those cases that do not resolve on the mediation day it is often the case that at least the way is paved for discussion to continue in the future.

Advantages

What are the advantages of mediation over litigation?

• It is fast and can be arranged quickly.  A mediation usually lasts 1 day and can be arranged within a couple of weeks. This contrasts with the tribunal process that can take up to 2 years to conclude. 
   
  
• It is comparatively cheap, and costs will generally be a fraction of what would apply in a fully contested claim which involves a week or even two or three at Tribunal. 
   
  
• It is private and confidential whereas a tribunal hearing does not afford the same privacy - parties’ involvement can be seen by others and the outcome is public.
   
  
• It is informal and flexible – mediations are not strictly rule-bound in the way that tribunals are bound by procedural rules and so all parties can benefit to some extent on a ‘win-win’ basis as opposed to the stark ‘win or lose’ position adopted in the tribunals. Mediated outcomes can be more flexible (eg by arranging an apology or redefining a role at work) whereas tribunals have little choice other than to make rulings set down by law eg make an award of money.
   
  
• Mediations are confidential - participants generally must preserve confidentially anything that is discussed at the mediation and cannot use things discussed at a mediation in a later tribunal hearing.  This enhances the prospects of parties discussing things openly and means that sensitive issues remain private.

Is mediation suitable for employment disputes?

Mediation is particularly suited to employment disputes because of the following:

• Speed – mediation resolves disputes quickly rather than allowing disputes to fester and ripple through the workplace.
   
  
• Cathartic – mediation gives the parties a chance to be heard which often helps to begin resolving larger issues at work.
   
  
• Relationship preservation – mediations are focused on the preservation of work-based relationships which are so important for a harmonious workplace and will focus on understanding, empathy and communication.  Tribunals generally have the opposite effect.
   
  
• Less formal issues suitable for mediation - Mediations can address issues and problems that frequently arise in the workplace before they can lead to advanced legal disputes eg communication breakdowns, personality clashes, grievances, or misunderstandings.
  

Are lawyers always involved?

Most of the time lawyers are helpful and sometimes essential, but parties can do it themselves if they wish. The key is that all sides should start off on an equal footing.

How do you pick a mediator?

It is advantageous, but not required, to pick a mediator with experience in employment law.  A mediator who is experienced in employment law and procedure will generally get to grips with the issues swiftly and bring to bear their own experience.

The HR Professional’s role

HR professionals are committed to fostering effective communication and promoting employee well-being—principles that naturally align with the spirit of mediation. Unlike the often rigid and binary nature of tribunal proceedings, mediation offers a more nuanced and empathetic approach to resolving workplace conflicts. It encourages dialogue, mutual understanding, and solutions tailored to the specific needs of those involved. By focusing on constructive conversation rather than adversarial outcomes, mediation helps create a workplace culture where individuals feel heard, respected, and supported. This in turn contributes to more harmonious working relationships and a healthier, more positive environment for everyone.

This article was provided by:

Rosemary Connolly, Solicitor
Kathy Sinclair, Juris Resolutions
Martin Blake, Juris Resolutions

www.jurisresolutions.com