Mediation and the employee 'fear factor'
Nicole Posner, October 16, 2017
Are employees refusing to engage in mediation before tribunals out of fear?
In July the Supreme Court made a landmark decision to scrap the employment tribunal fee regime. The ruling claimed it was unfair and unlawful and denied employees access to the justice system if they were unable to afford the tiered fee structure, in some cases of up to £1,200.
This will now be ‘game on’ for employees to push ahead with a claim where previously this was not an affordable option. However, employers could now be inundated with a deluge of claims, and might want to be more proactive about early resolution of disputes to avoid costly new cases heading to an employment tribunal.
Conflict issues need to be handled sensitively and quickly before they escalate. One of the simplest, most cost-effective, and most common-sense solutions of alternative dispute resolution is mediation.
Herein lies the first burning issue that employers face; how to encourage employees who are bitter, angry, upset or apprehensive to ‘buy in’ to mediation. What are the obstacles preventing them from engaging in a win/win process when they could now more easily have ‘their day in court’ if they believe their claim is solid?
Could their reluctance to participate be a result of 'the fear factor’?
The fear that the ‘establishment’ is part of the problem. In most organisations HR initially deals with grievances and management investigates the claims. However, there is often an underlying mistrust that the claim will not be dealt with fairly and impartially, particularly when a claim is made against a line manager or more senior members of a team. Some employees see it as ‘them’ against ‘me’ and believe the claim cannot be investigated objectively. Using an external mediator can alleviate these fears as he/she is neutral, impartial and has no vested interest in the dispute.
There is also the fear of being totally open and honest, feeling judged or that very personal issues discussed with HR or management are now not so personal. Once again mediation can quash these concerns as it is a confidential process and nothing shared by either participant can be disclosed to anyone unless both parties agree to do so. Again because of confidentiality, engagement in the mediation process cannot be included as part of a performance review.
The fear of being face to face with the perpetrator. Ask anyone who has felt scared, intimidated, angry or bitter if they would like to sit in close proximity in a room for several hours with the offender and I think you would be hard pressed to find anyone who would voluntarily agree to do so. However, as mediation is a flexible and informal process the mediator can spend time with the anxious party in ‘one to one’ private meetings before the ‘joint meeting’ with the other party. It is a safe and respectful environment where the mediator can help temper tantrums, tears and angry outbursts.
The fear of repercussions and impact on continued working relationships. If nothing else, an employment tribunal will ensure a bitter end to any working relationship. However, because mediation is future-focused and self-determined it provides sustainable solutions and works on the premise of building bridges not burning them.
An employment tribunal is a long, formal, stressful and costly process and naturally something to be avoided if at all possible. Conflict is unsettling and disruptive for all those involved and can have a domino effect on the rest of your team. Resolving the dispute quickly will restore the equilibrium and ensure the emotional wellbeing of your employees is safeguarded, allowing your organisation to return to productivity.
Nicole Posner is an independent workplace mediator