CMP Resolution Blog by Lesley Allport and Katherine Graham.
CMP reviews the new Dispute Resolution Report from the Department for Business Innovation and Skills (BIS) and assesses the impact of the proposals
In an effort to reduce the burden on the Employment Tribunal (ET) System the Government consulted widely in 2011 to come up with some proposals for pre-empting claims and resolving grievances before they escalate. In November last year BIS responded to the consultation with their proposals. In summary:
BIS’s overarching vision is to ‘embed’ mediation as part of the ‘dispute resolution process’: no one is clear where this process begins, but it clearly ends at the ET, long after any notion of ‘resolution’ within its meaning has disappeared. Embedding also involves providing access to mediators either internal or external. The idea still remains that people need a third party to resolve matters. Organisations may find it equally beneficial to invest in the earlier stages of ‘resolution’, by improving manager’s conflict management skills.
BIS sees ‘the need to tackle problems early before they get to the tribunal stage’ and intends to change the legislation so that anyone considering lodging an ET claim has to lodge it with ACAS first. ACAS will then offer pre-claim conciliation and will be getting increased funding to resource this. Pre-claim conciliation will be available for all types of ET claim other than those with statutory time limits. ACAS will be able to extend the process by two additional weeks where they believe a reasonable chance of settlement is likely with this additional time. We believe that this may in fact minimize the use of early mediation, where employers know that if they wait the situation out and it worsens, they can access the ‘free’ conciliation service further down the line. This misses the impact that the ongoing conflict will be having in the workplace and we strongly recommend that organisations don’t wait for conciliation but use mediation early to get people back to work long before things reach this stage.
BIS recognises that SMEs face different problems to large employers, and is going to fund the establishment of two SME mediation regional networks. While there is no shortage of mediators in the UK there is a clear lack of buy-in from business to its benefits. It will therefore be vital to focus on what happens before and after the training of any mediators and in making the case for SMEs that mediation has value to them, and when and why they ought to use it.
The Government has identified an ‘innovative approach to early dispute resolution’ in the retail sector, and it will be exploring with these organisations how they might share their mediation expertise and cascade their mediation knowledge and expertise within Retail down through their supply chain. Large retailers will need to see a business benefit in supporting their supply chain in this way. The supply chain may also need to be convinced that their purchasers are a neutral and independent source of mediation advice and expertise.
The Paper makes clear the Government expects to use the ‘Every Business Commits’, or ‘The Big Society’ policy, as a way of ‘addressing the … lack of familiarity with mediation’. This in our view needs the support of all mediation providers and in particular the Civil Mediation Council Workplace Committee – of which we are committee members –in promoting mediation and making mediation more accessible. Our ‘Nudge’ White Paper outlined specific steps that organisations and Government can take to influence the uptake of mediation.
It rightly identifies the need to support people to have early, frank conversations about an employment issue ‘as a way of resolving the matter without fear’. BIS will be consulting later this year on these ‘protected conversations’. CMP believes the principle is to be applauded, but fears that unless there is an increase in manager’s skills to have constructive, skillful dialogue of this type, ‘protected conversations’ will become a vehicle for poor management practice.
Compromise agreements will be renamed ‘settlement agreements’ and a standard text will be developed for all parties to simplify the process and reduce the legal costs of implementing a compromise agreement. CMP’s settlement mediation service is used for situations where the working relationship needs to be ended, and we believe that the Government may have missed an opportunity to connect the benefits of mediation with ending working relationships.
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