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Legal Updates

Mediation - What`s So Special?

07 July 2010 #Employment


In 2009, a new ACAS code was published encouraging the use of mediation for workplace conflict.  On top of this, the Ministry of Justice has recently published a long report by a very experienced Appeal Court Judge because of real concerns over the high cost of litigation and access to justice through the courts.  The findings, amongst other things, were that:

  • Mediation is the most important form of ADR (alternative dispute resolution)
  • It has a vital role in reducing costs
  • It is under-used at present
  • Its considerable benefits are not widely known
  • An awareness raising campaign is needed with the public and businesses

But what about the traditional methods?  Litigation is, and always will be, a necessary part of the civil justice system, partly because not every single case is suitable for mediation - the vast majority are though.  The same is true with workplace procedures like disciplinaries and grievances.  With these traditional methods, there will be just one ‘winner`, but the winner may not feel like they have won due to the long time it often takes to get a result (with the anxiety of this), the costs or management time which is expended (which can become frightening), and the business or personal relationships which are often destroyed along the way.

So, why is mediation such a good way of resolving legal disputes and interpersonal conflict, notably in business which, on the whole, doesn`t realise its benefits and wide range of applicability?

  • It is private and confidential - not in public as with the courts and tribunals
  • It is voluntary and consensual with a win : win outcome
  • The mediator controls the process - very flexible with no prescribed rules to follow
  • The parties determine the outcome - they retain control
  • Both legal and non-legal matters can be included - it is holistic, which is powerful
  • It focuses on interests and needs - future orientated rather than playing the usual blame-game
  • Resolution can be quick - it is quick to set up and to undertake
    It can be stress-busting and even theraputic - partly due to quick set up and non-adversarial nature and partly due to having a real forum to have your say
  • Modest costs in comparison
  • Possibility of saving or restoring strained relationships
  • Good success rate - 75-90% depending on the type of case

Mediation is the future for resolving disputes and conflict and for all types of business scenarios: from the board room to the shop floor or outsourced team; from corporate restructures to changed working practices for a team; from mergers and acquisitions to redundancy programmes; from a disgruntled client claiming negligence or breach of contract to a large multi-team project which is becoming dysfunctional; and from shareholder unrest to stakeholder or community disquiet.

It`s not just ‘formal` mediations either.  The skills of a mediator can also be used for other things like assisting one party in ‘smart` negotiations to help them achieve an enhanced outcome.  This approach to negotiation is especially useful where mid- to long-term deals are in mind or where well functioning relationships matter to the overall success of the deal.  Mediators, who are also qualified and experienced coaches, can be especially useful in this situation - also where leaders, key individuals and teams need to develop their people and interaction skills, notably in change situations where a smoother transition is desired.  Being skilled at dealing with the sharp end of conflict, such mediators are well placed to help business owners, directors and managers avoid and manage it!  BA, take note.

Julian Evans

For Forbury People

Contact: gcoleshill@forburypeople.com

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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