There is no more costly problem for a British employer than workplace conflict. When one puts together the figures for absence, resignations and the like, ACAS-commissioned research by Saundry and Unwin puts the bill to UK organisations at close to £30 billion annually. In such an environment, mediation has ceased to be some niche HR exercise and become the professional, regulated way to put disputes to rest with speed and confidentiality, and without the scars of formal proceedings.
The Legal Framework
One does not have a statutory compulsion to mediate in the workplace as one would in civil litigation, yet the law is ever more insistent on it.
Most of the grievances that come before us are underpinned by the substantive rights of the Employment Rights Act 1996 and the Equality Act 2010, covering everything from unfair dismissal to harassment and victimisation. Mediation is the means to see these settled before they harden into claims.
Then there is the matter of the ACAS Code of Practice on Disciplinary and Grievance Procedures. Under the Employment Act 2008 and section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code has real force; tribunals will not hesitate to trim awards by as much as 25% if a party has been unreasonable in not following it. And since 2014, early conciliation has been a prerequisite. No claim can make it to an employment tribunal until ACAS has had its say, effectively making third-party resolution part of the process.
What the Courts Say
The case law is clear on the matter. In Dunnett v Railtrack back in 2002, the Court of Appeal made a point of denying costs to the winning side for having spurned mediation, a warning that was taken as a landmark. Halsey v Milton Keynes General NHS Trust (2004) provided the framework for what constitutes an unreasonable refusal, and one still sees courts applying those factors today. More recently, Churchill v Merthyr Tydfil (2023) left no doubt that an order for ADR is within the court’s power. The message for any party in an employment tribunal is plain: to ignore mediation is to do so at your financial peril.
Those Shaping the Profession
Three organisations have been instrumental in putting professionalism at the heart of workplace mediation:
ACAS, as the statutory conciliation service, has done more to normalise the process than any other body, not least through its Code of Practice and research that lays bare the true expense of conflict. In England and Wales, the Civil Mediation Council (CMC) is the standards authority; its registration of mediators and providers gives an employer the assurance they are dealing with properly insured and accountable people. The CIPD has also been a vocal proponent, using its factsheets to urge HR departments to view mediation as a first resort and a core people-management skill rather than a legal ploy.
In Practice: Effective Dispute Solutions
Effective Dispute Solutions specialise in workplace mediations. Having successfully mediated work disputes for nearly twenty five years for law firms, schools, charities and HR departments. Their workplace mediators hold accreditations with the CEDR, RICS, the ADR Group and the Civil Mediation Council. Many of who come from legal, employment and HR backgrounds. In most cases they can arrange a session within two weeks of initial contact. That is important when every week of an open dispute is eating away at productivity and morale. Making the dispute more entrenched and the issues deeper. Making it that much harder to resolve.
EDS’s experience in the field covers the full spectrum:
• Interpersonal issues and team dysfunction between colleagues, nipped in the bud before formalities set in.
• Disputes between manager and employee over bullying or perceived unfairness.
• Sensitive complaints of discrimination or harassment, where discretion and dignity are paramount.
• Matters on the cusp of a tribunal, such as constructive or unfair dismissal, which we settle to avoid the cost and publicity of a hearing.
• Conciliation for NHS complaints in healthcare environments.
For the most part these are resolved the same day or soon after. More importantly, workplace mediation has a way of mending the working relationship in a manner a tribunal judgment never could. Making employees able to work alongside one another again, professionally.
Conclusion
The institutional and legal architecture all points in one direction: get skilled help and resolve things informally and early. The CIPD data tells you unmanaged conflict is siphoning billions from UK plc; the courts and the ACAS Code will penalise inaction. It is not a question of whether workplace mediation is effective, but how soon one can bring in a mediator to make it so. The quicker you use mediation, the better chance you have of resolving your workplace issue, no matter what it is.