Take part in our Straw Poll

•  Discover the Government’s new position on mediation, protected conversations, and the role of ACAS and what this means for you, in particular if you are an SME or in the retail sector.
• Understand why a focus on mediation alone may not achieve the Government’s goal – and what needs to be done to support the benefits of mediation being realised in order to reduce grievances and change complaints cultures.
• Hear the top 6 reasons why mediation hasn’t achieved its promise, and what you can do in practice to embed the benefits of mediation into your workplace.
• Listen to case studies from BIS, the Institute of Leadership and Management, and London Underground about how they invested in a range of conflict management training to reduce and manage grievances and incidents of bullying and harassment.

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

The RAF is training mediators on one of the modules of the CMP Resolutions ‘Qualified Advanced Workplace Mediation’ programme.

Mediation is so much more than this. This paper, by CMP’s founder and Chair – John Crawley,  is designed to show you how to expand the range of existing mediation projects, and get the most of mediation in your organisation.

 Download the white paper

I was up in the far reaches of Scotland this week as the external Verifier for a new post-grad course being proposed by a forward thinking university. The course is geared at ‘all’ mediators and is going to be a great new addition to the training options available to would-be mediators. But the ‘all’ mediation types they had identified were limited to the usual suspects: commercial, workplace, family and community. There are so many more to consider.

So if you are thinking about becoming a mediator, remember there are far more places where mediation is going on than may first appear. Check out this list for ideas.

Restorative Justice (aka Victim-Offender ) which “bring those harmed by crime or conflict, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward”. http://www.restorativejustice.org.uk/

Homelessness mediation, which is increasingly being used to rebuild family structures when a young person has left home or has been thrown out often due to alcohol or drug misuse by some family member. Mediation is used to bring them back into contact with their family and ideally back to the home; and many local authorities have introduced mediation schemes intended to bring the young person together with their family to explore whether it is possible to negotiate a safe and sustainable return home. http://www.homelesspages.org.uk/terms/2313/tids/2313

Environmental mediation is used to resolve differences between stakeholders involved in new developments, for example people with a view on environmental protection, nature conservation, quality of life versus development and in particular to projects subject to environmental regulation or that may have an environmental impact (emissions, consumption of resources, exploitation of unspoilt nature, etc.) http://www.partizipation.at/environmental_med.html

School or peer mediation where school children are trained to mediate disputes between other children, live and in the playground. This is the kind of work that is inspiring and really builds a new mediator’s faith in the process and orientation of win-win dispute resolution. http://www.nspcc.org.uk/inform/publications/downloads/peermediationintheuk_wdf48055.pdf

SEN mediation is used where parents and carers disagree with a decision made or actions takenby schools and local authorities regarding their child’s special educational needs. For example, this might be the support the child gets at school, the statement itself, and the schools admission proceedure.  http://media.education.gov.uk/assets/files/pdf/g/green%20paper%20presentation.pdf

Elder mediation provides a tool to help elders and others in their lives as they progress through the difficult decisions that impact their quality-of-life. The most common issues might be caregiver buden, healthcare and finances, living arrangements, stepfamily issues, retirement and nursing home decisions It typically involves groups of parties including the older people, family and friends, and often paid care-givers, hospital and nursing home staff and doctors.

This module is part of the Qualified Advanced Workplace Mediator course, made up of three units. Mediating Groups in Conflict is module 2.2 within Unit Two: Advanced Mediation Process©. This unit deepens the mediator’s ability to vary the process of mediation. One size process does not fit all situations and skilful mediators working at advanced levels need to be flexible and competent at maintaining the values and principles of mediation while running a new or complex process. 

Dates: 8th and 9th March 2012 Venue: Birmingham – venue tbc 25% early bird discount

Full details and Booking

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John’s interview on How to Use Mediation is available in the magazine’s November issue online.

What is mediation?

You’ll often see mediation described as ‘is a process by which an impartial third party helps parties in dispute reach mutually acceptable agreements’. At CMP, we believe in making things easier to understand, so we say that a mediator is someone who helps people in dispute with each other have difficult conversations, and helps them to iron out their differences and agree how they can have a more constructive future.

Who is a mediator?

A mediator may be someone inside the organisation, or someone brought in from outside. Either way, they will not be involved in the situation or know the people they will be mediating. They ideally will have had proper training to mediate – but often a skilful HR or line manager will use mediation skills to help people have difficult conversations. Mediators in the workplace will not wear an ‘HR’ or ‘Union’ or ‘Legal’ hat: if they have these other roles, they need to hang that hat up before they start mediating.

What does impartial mean, in practice?

Everyone knows that impartial means ‘doesn’t take sides’. A CMP mediator will not be coldly neutral, but will instead work fairly and positively for each person involved. Impartial, for CMP, actually means ‘multi-partial’ – not on no-one’s side, but on everyone’s side. They make sure everyone has the same chance and encouragement to speak and put forward ideas, that everyone has the same chance to listen and understand each other. A mediator will also make sure they don’t judge or evaluate who is right or wrong, reasonable or unreasonable, and they won’t tell you what to do. It is the people with the conflict or dispute who decide what they are willing to do, and what they can agree to.

So, they don’t take sides, they don’t say who’s right or wrong, and they don’t come up with solutions. What do they actually do apart from getting people together?

A good question. What it boils down to is that mediators “create a safe environment”. This means that they control, manage and ‘own’ the meeting and say who can speak, when, to whom, and about what. They might do this quite tightly if tempers are flaring, or they might loosen the reins and sit in silence just listening, if people are talking usefully to each other. Mediators have a range of skills that they use to help people to talk honestly about what they have experienced, what they want, and what they feel. A CMP mediator will be very understanding and empathetic: if you get angry or upset, or find things difficult to say, they will help you manage those feelings. In unmediated meetings, conversations are often more about what you say, than what you hear, so a key role for a mediator is to slow conversations down so that everything gets proper attention, and ask people to say what they need to so that the other person can hear it, rather than just blaming and accusing. They also make sure that anything you might agree to is going to work in practice, so that you get something out of the meeting that is going last and be really workable.

Why should I choose mediation?

Because mediation is not seeking a culprit, or scapegoat, it can help rebuild relationships and restore broken communication and trust. Grievances and disciplinaries can be effective in certain situations, but for things such as a breakdown in communication or disagreements over work style or behaviour, mediation avoids the bureaucracy, the blame and the pain of being involved with a formal complaint. It’s fast, free at the point of delivery, and private.

How long does it take?

Normally, a mediation will be over within a week of you agreeing to it. You’ll meet with the mediator for a private conversation for a couple of hours, then get together with the other person involved, for a meeting that might last 4 or 5 hours. It’s all over in one session – but you can always come back to the mediation ‘table’ at any time, and CMP’s mediators can be contacted by phone afterwards if you need a little further support.

What is the status of confidentiality in mediation?

What is talked about is kept between the people involved, and the mediator. It may be appropriate to share some of the outcomes with other colleagues but only if both people agree to it. Nothing goes on your personnel file.

When would you use mediation?

Most kinds of disputes can be mediated as long as those involved want to find a solution and a way forward. Mediation can be used in a variety of situations including breakdowns in working relationships, communication difficulties between colleagues and conflicts involving feelings of being bullied or harassed. You can mediate at any stage of conflict, but if a formal complaint has been made, this needs to be “on hold” while the mediation takes place. Mediation may also be very useful after a grievance or disciplinary process has run its course, to get people back to working together and as a way of repairing damaged relationships.

What happens in mediation?

There are basically two meetings, which might vary a little in length.

First, the mediator meets each party individually for one or two hours, to listen and gain a thorough understanding of each person’s concerns and feelings. They will also explain more about the next step and discuss any reservations you might have about using mediation. They will not discuss what the other person has said.

Second, as long as everyone has agreed to meet, the mediator then brings everyone together in the same room, for between three hours and a whole day – the time varies depending on numbers involved.

During the first part of this meeting each person is given time to speak about their feelings and concerns, while the other listens. The mediator summarises the main issues and agrees an agenda. You then talk openly to each other and the mediator will encourage you to:

• discuss things frankly and fully
• look at the problems in turn
• generate ideas for solutions
• plot potential hazards
• generate a time-frame for change
• create agreements for future interactions and your future relationship at work.