Contemporary Employee Relations
Total 3,000 words for 3 questions. All questions carry equal weightage. For details please refer to the attachment. Will upload relevant materials from school for this assignment. The Harvard method of referencing is used.
Acknowledgements 2 Introduction 3 1 The impact of conflict in the workplace 5 2 What is mediation? 8 3 When can you use mediation? 11 4 The benefits of mediation 14 5 Implementing mediation in your organisation 17 6 Managing the mediation process 25 7 Evaluation 32 Conclusions 35 Useful contacts 37 References for further reading 38
This updated publication, first published in 2008 as Mediation: An employer’s guide, has been produced for Acas and the Chartered Institute of Personnel and Development (CIPD) by Sarah Podro and Rachel Suff of Acas. The case study research used to inform the guide was conducted and managed by the Research and Evaluation Team at Acas.
A number of organisations with experience of using mediation provided valuable case study material to help inform this guide. We would like to thank the following organisations that took part in the study:
• Incommunities – a large housing association • Customer Service Direct – a joint venture between Suffolk County Council, Mid Suffolk District Council and BT
• Ministry of Justice – a large central government department
• Salisbury Cathedral – a small/medium-sized charity • University of Central Lancashire (UCLan) – a large university
• West Midlands Police – a large police force • MRM – marketing solutions agency.
One of the participating case studies preferred to remain anonymous:
• medium-sized public sector organisation.
In addition the updated publication draws on case study materials from the Acas research study Transforming Conflict Management in the Public Sector: Mediation, trade unions and partnerships in a primary care trust (2011), by Richard Saundry, Louise McArdle and Pete Thomas (the Institute for Research into Organisations, Work and Employment (iROWE) at the University of Central Lancashire).
Special thanks go to Acas colleagues Gill Trevelyan, Sarah Vintner and Keith Mizon, to the Acas team of mediators and to the Acas Research and Evaluation
Team, in particular Tim Johnston and Gill Dix, and to Mike Emmott, CIPD.
2 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Mediation is increasingly being used to resolve disputes in many areas of life. It is one of the processes within the alternative dispute resolution (ADR) spectrum and involves a neutral third party bringing two sides together with the aim of reaching a mutual agreement.
Policy-makers and organisations are increasingly recognising that mediation, and other forms of ADR, have a particular resonance in the workplace. People are the key to organisational success and productivity, and negative conflict between individuals or groups of individuals can severely hamper an organisation’s drive for competitive advantage and damage employee well-being.
Following the Gibbons review of employment dispute resolution in 2007, the updated Acas Code of Practice on Discipline and Grievance introduced a specific reference to mediation in its foreword. And in the Government’s response to its 2011 consultation, ‘Resolving Workplace Disputes’, it made clear its intention ‘to embark on a long-term reform programme to build a new approach to resolving workplace disputes so that the use of mediation to resolve disputes becomes a more accepted and trusted part of the process’ (BIS 2011).
In June 2012 the Department for Business, Innovation and Skills (BIS) announced the launch of a pilot scheme to train mediators in 48 SMEs, forming two networks, in Manchester and Cambridge. The idea was that mediators would be available to provide mediation to other organisations in their respective network. If successful, the intention is to roll the scheme out nationally.
Since the first edition of this guide, there has been a noted increase in interest and take-up of mediation. The CIPD 2011 Conflict Management survey report found that 57% of organisations had used mediation compared with 43% in 2008.
There are convincing reasons to promote the wider use of mediation in individual employment disputes. The advantage of using an informal approach means there is greater flexibility in how it is used to suit specific circumstances, and the confidentiality of the process can offer a breathing space that allows more open and honest discussion.
Mediation is especially effective when used at the initial phase of any disagreement, before conflict escalates in the workplace. An early intervention can prevent both sides from becoming entrenched, and the difference turning into a full-blown dispute. If the disagreement is resolved early on, there is less chance of the working relationship breaking down irrecoverably. This improves the likelihood of maintaining good and productive employment relations in the longer term.
Mediation can provide a swifter response to conflict and can nip potentially damaging disputes in the bud. It has been shown to reduce levels of grievances and, where these would have led to a tribunal, it provides a far cheaper response than the employment tribunal process, which can involve immediate financial costs to the organisation and the individual claimant, as well as non-financial burdens.
Moreover, employment tribunals do not resolve systemic problems at work that may underlie an individual dispute. Mediation is more likely to enable the employer to get beneath the problem and make changes to working practices that can benefit employees and the organisation more generally in the long term. In particular, mediation can help to address issues around stress, helping to prevent long-term absence.
In 2008, Acas commissioned GfK NOP to carry out a telephone interview survey of managers in 500 SMEs to assess their experience of mediation; of those that
had used mediation, almost half said that the last mediation had resolved the issues completely (49%),
and more than four in five (82%) said it had resolved the issues either completely or partly.
Moreover, Acas has recently published research which found that the introduction of mediation and the skills acquired by in-house workplace mediators can influence both their own behaviour in a wider range of settings and others with whom they come into contact. In one case, the introduction of a scheme was found to have a transformative effect on the culture of conflict management in the organisation (see for example Saundry and Wibberley 2012, Saundry et al 2011).
This guide, updated in 2013, aims to provide useful practical help for employers, employees and their representatives in deciding whether, and in what circumstances, mediation may be suitable. We hope its publication will help raise the profile of mediation and inform the public debate about effective dispute resolution. The guide is not intended as a step by-step ‘how to’ guide for mediators. It is to help organisations to decide if mediation could work in their organisation and the factors and processes to be considered in its implementation.
The case studies used to illustrate this guide are predominantly from the public sector, but the messages and guidance are equally applicable whatever the size or sector of the organisation.
The guide covers the use of both internal mediation schemes and external mediation providers. The use of internal mediation is still developing, and may be
more appropriate in larger organisations because of the difficulties of in-house mediators not being perceived as impartial in smaller companies, although the interest in developing SME mediation networks may help to overcome some of these challenges. Nonetheless, the more detailed understanding of mediation processes required to establish in-house mediation provides useful insights for all organisations however they choose to approach mediation.
Acas and the CIPD have a shared aim in promoting good dispute resolution techniques. Acas’s mission to improve organisations and working life through better employment relations means that the promotion of good practice is at the heart of its in-depth work in workplaces. The CIPD is dedicated to helping its members to make informed decisions about improving practice in their organisations.
Both organisations, therefore, have a vested interest in helping workplaces acquire the skills needed to manage conflict effectively so as to sustain the employment relationship. We believe that mediation, when used appropriately, can offer a fresh approach to organisations wishing to avoid the potentially destructive effects of drawn-out conflict.
Mediation is not offered as a panacea, and there are some cases of conflict where it will not be suitable. Similarly, there is no one best method of mediation. Different mediation approaches can work to suit different organisational circumstances. The in-depth research, carried out by Acas in a range of organisations to inform this guide, reflects this and the results are quoted throughout.
4 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
1 THE IMPACT OF CONFLICT IN THE WORKPLACE
‘I think mediation is a good first port of call for the business. For the Ministry of Justice to have mediation is very valuable because we are investing in the staff. Conflict causes all manner of problems, including health problems resulting in sickness absence and stress or anxiety. It can have a detrimental impact in teams within the workplace who are directly or indirectly involved.’ Ministry of Justice
Conflict between individuals in the workplace can cost an organisation dear. In 2011–12, there were 186,300 employment tribunal claims (MOJ 2012). Over the past decade there has been a significant increase in employment rights legislation, providing additional avenues for employees to seek recourse through formal channels. People are also now more aware of their rights at work. This expanded legal framework means that, if employers do not manage conflict effectively, the consequences can be serious.
Why does conflict happen?
Conflict is an inherent part of the employment relationship. Modern organisations are dynamic and complex, made up of people with increasingly diverse backgrounds, opinions, values and expectations about work. For their part, organisations are under ever increasing pressure to be productive or deliver quality services to clients. The continuous change experienced by many organisations can also lead to conflict. As the HR consultant at Incommunities commented: ‘I think the constant changes bring tension.’
The CIPD 2007 Managing Conflict at Work survey found that general behaviour and conduct issues were rated as the most common causes of disputes at work, followed by conflicts over performance, sickness absence and attendance, and relationships between colleagues.
A certain degree of healthy conflict – for example, fair competition between individuals to excel in their roles – can be a good thing, and can even help to create innovation within teams. But often the tension can lead to discord and start to create negative conflict. It is when the initial disagreement is pushed under the carpet and not managed properly that the situation can fester and the conflict spiral.
Line managers typically have to play multiple roles in today’s workplace. It is not surprising that many shy away from having those difficult conversations with staff, particularly if they lack the skills or training
to handle complex situations that have become personalised. But if conflict is not managed directly, at an early stage, their job in helping the parties to resolve their differences will be much harder.
Table 1: The conflict lifecycle
Stage of conflict Behaviours or signs
Beginning Incompatible goals
Open or covert conflict
Avoidance of conflict
Tension starts to be noticed
Early growth Confrontation
Polarisation of positions
More overt signs of conflict
Deadlock Conflict at its peak
Communications cease between parties
Look for a way out of the conflict An acceptance that the problem needs to be sorted out Working together for a solution Collaborating
The stages of conflict
It is not always easy to pinpoint when a disagreement becomes a conflict because of the different ways that people react. But there are distinct stages in the lifecycle of conflict, where they will display certain common behaviours. It can be helpful to recognise these (Table 1).
The formalisation of conflict
Formal procedures have an important role to play in the workplace. But many disputes could potentially be settled without the need to pursue a formal grievance procedure. Once formal procedures have been triggered, the tendency is for differences to become more adversarial. Once the conflict has escalated and positions have become entrenched, it is very difficult to alter people’s perceptions and have an open discussion. The likelihood of a mutually acceptable outcome then becomes more remote.
The price organisations can pay for conflict goes beyond the costs of an employment tribunal claim. There are also the internal resources spent on
discipline and grievance cases to take into account – the CIPD Conflict Management survey report (2011) indicated that managing each grievance case takes an average of seven days of management and HR time. The cost of conflict includes direct and indirect costs. Some, such as sickness absence due to stress and staff turnover, are quantifiable and have an immediate adverse impact on the organisation. Other costs, such as loss of team morale and presenteeism, where employees are at work but not working to their full potential because of stress levels, are harder to pin down but the effects are just as damaging on productivity.
A personal price to pay
It is not only the organisation that suffers if there is conflict between people. The situation can have serious implications for the individuals concerned and for bystanders who are not immune to events taking place around them. For every incident of conflict, there are likely to be several colleagues who witness or who are drawn into the disagreement. If formal processes come into play, people may be forced to take sides in an adversarial way. This will do nothing
6 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
to build relationships between those involved and could endanger future teamworking.
Being involved in a conflict – be it a personality clash or a dispute over performance – can cause psychological stress leading to mental health conditions such as anxiety and depression. The welfare of the organisation is bound up with the health of its employees. The 2011–12 Labour Force Survey recorded a total of 428,000 people in the UK who reported suffering from stress, depression or anxiety, out of a total of 1,073,000 for all work-related illnesses. Stress-related ill-health is only marginally less than reported musculoskeletal disorders, but the gap is narrowing (HSE). In 2011, CIPD and CBI surveys on absence reported that stress and mental health issues had become the number one reason for long-term absence.
Being caught up in a conflict at work can distract a person from their work and affect their long-term career plans, particularly if they have taken time off as a result of the problem. The situation can impact on their home life, creating a vicious circle of pressure and discord. If the situation becomes formalised to the extent that legal proceedings are involved, there can be a significant financial cost to the individual.
Workplace conflict – the organisational costs • the risk of time-consuming formal proceedings such as grievances and employment tribunal claims
• sickness absence costs as the individuals concerned take time off to deal personally with the effects of the conflict
• management time being diverted to dealing with the conflict instead of focusing on managing the business
• staff turnover and re-recruitment and re-training costs, where conflict leads to the departure of those affected from the organisation
• lower staff morale leading to less commitment to exerting discretionary effort, leading to lower productivity
• poor working relationships within the teams affected
• loss of focus on corporate goals and common objectives as people are distracted by the disagreement
• the potential for a blame culture to develop, rather than one focused on innovation
• the employer’s external reputation could be compromised
2 WHAT IS MEDIATION?
‘Mediation is based on the principle of collaborative problem-solving, with a focus on the future and rebuilding relationships, rather than apportioning blame.’
from University of Central Lancashire mediation policy
Mediation is where an impartial third party, the mediator, helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator. The mediator is not there to judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do. The mediator is in charge of the process of seeking to resolve the problem but not the outcome.
Mediators may be employees trained and accredited by an external mediation service who act as internal mediators in addition to their day jobs. Or they may
be from an external mediation provider. They can work individually or in pairs as co-mediators.
Mediation distinguishes itself from other approaches to conflict resolution, such as grievance procedures and the employment tribunal process, in a number of ways. Mediation is:
• less formal
• morally binding but normally has no legal status • confidential
• (generally) unaccompanied
• owned by the parties.
What does mediation seek to achieve? Mediation seeks to provide an informal and speedy solution to workplace conflict, and it can be used at any point in the conflict cycle. What the process offers is a safe and confidential space for participants to find their own answers. It does this in a number of ways, by:
• exploring the issues, feelings and concerns of all participants and rebuilding relationships using joint problem-solving
• allowing those involved to understand and empathise with the feelings of those they are in conflict with
• giving participants insights into their own behaviour and that of others and opening up opportunities for change
• helping participants develop the skills to resolve workplace difficulties for themselves in future • encouraging communication and helping the people involved to find a solution that both sides feel is fair and offers a solution that favours them • using energy generated by conflict in a positive way to move things on.
Models of mediation
The way in which a mediator conducts the mediation process will depend on the particular style of mediation involved. Various models exist, although it is common for mediators to draw on more than one. This guide is based predominantly on the model of facilitative mediation. Other models include evaluative, transformative, transactional and directive approaches.
Facilitative mediation is the most common style in the UK. The mediator normally plays an active role in guiding the process. Using joint problem-solving
approaches, the mediator asks questions to identify the interests and real issues of disagreement, and helps parties to identify and evaluate options for resolution and settlement. The mediator does not suggest solutions, although they may float ideas.
What happens during a mediation?
There are distinct phases in the mediation process, and these are variously described in the literature as a three-, four- or five-stage process. Whichever way it is broken down, the essential elements remain the same. The first stage will deal with the parties
8 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Stages of mediation
• First contact with the parties – the mediator will meet parties separately. The aim of this first meeting is to allow each individual involved to tell their story and find out what they want out of the process.
• Hearing the issues – the mediator generally brings the participants together and invites them to put their side of the story during a period of uninterrupted time. At this stage the mediator will begin to summarise the main areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.
• Exploring the issues – having identified the issues to explore, the mediation is now about encouraging communication between the parties, promoting understanding and empathy and changing perceptions. The aim of this part of the meeting is to begin to shift the focus from the past to the future and begin to look for constructive solutions.
• Building and writing an agreement – as the process develops, the mediator will encourage and support joint problem-solving by the parties, ensure the solution and agreements are workable and record any agreement reached.
• Closing the mediation – once an agreement has been reached, the mediator will bring the meeting to a close, provide a copy of the agreed statement to those involved and explain their responsibilities for its implementation. In some cases no agreement is reached and other procedures may later be used to resolve the conflict. However, nothing that has been said during the mediation can be used in future proceedings.
separately, while the remaining stages will generally be dealt with during the joint session. There may be a need to separate the parties at various points and speak to them individually if there appears to be an impasse or the mediator feels that one side is unwilling to divulge information which might help to break the deadlock.
There are occasions where shuttle mediation – the mediator moving between the parties and relaying the views of each – has to be used because parties will not sit in the same room with each other; or because at certain points it is more effective to do so. But the aim is to bring them together eventually.
Confidentiality at UCLan
Mediation was confidential on all sides. The only exception to this was a potentially unlawful act or where there was evidence of a serious risk to health and safety. The mediator would hand-write two copies of the agreement between the parties (there were no photocopies) and leave the room with nothing. Written records of the proceedings were not kept. The HR or line manager only knew participants’ names if they had passed the case to the mediation service, but they did not receive any formal feedback other than that the case had been completed. However, where a mutual agreement reached by the participants needed support from the line manager, the participants would take responsibility for discussing this with them. The scheme manager would record the names, but keep them in confidence, in case they returned for further mediation. Statistics were provided at the end of each year to record the number of cases dealt with and the success rates. No names or confidential information were released as part of this process. If the mediation identified that someone should have some training, that formed part of the agreement.
Anything said during the mediation is confidential to the parties, and anything said that the parties would not otherwise have known cannot be used in any other context. They may choose to reveal some or all of what has occurred during the mediation to colleagues, or their managers, but only if all parties agree. Typically this agreement to share would cover situations where others need to be involved as part of the agreement, for example if a manager needs to agree training. The only non-voluntary exceptions are where, for example,
a potentially unlawful act has been committed or there is a serious risk to health and safety.
Future legal proceedings
What happens during the mediation cannot be used in future legal proceedings without agreement from both parties. In theory, a mediator could be ordered to give evidence at a tribunal or a court of law. However, in practice, courts prefer to protect the confidentiality of the mediation process because without that protection they realise that people would be less willing to use mediation.
10 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
3 WHEN CAN YOU USE MEDIATION?
There are no hard and fast rules for when you can or cannot use mediation. In general, mediation is more likely to be successful if it is used at an early stage before attitudes have hardened. However, it
can also be used when other attempts to resolve an issue have failed.
Who? It can be used for conflict involving colleagues of a similar job or grade, or between a line manager and their staff. It can be used, exceptionally, where there is conflict between teams, or between a trade union or groups of employees and management.
When? It can be used at any stage in the conflict as long as any ongoing formal procedures are put in abeyance, or where mediation is a stage in the procedures themselves. It can be used before a
formal grievance has been identified. It can be used after a formal dispute has been resolved to rebuild relationships.
What? It can be used to address a range of issues including relationship breakdown, personality clashes, communication problems, bullying and harassment.
A judgement call
There are situations where it may not be appropriate to use mediation, but it is often not clear cut and it will be up to the mediator or whoever is overseeing the mediation process to make a judgement on a case-by-case basis. It is often said in relation to mediation that ‘if you can’t make it better, don’t make it worse’.
Mediation may not be suitable if:
• used as a first resort – because people should be encouraged to speak to each other and talk to their manager before they seek a solution via mediation
• it is used by a manager to avoid their managerial responsibilities
• a decision about right or wrong is needed, for example where there is possible criminal activity • the individual bringing a discrimination or harassment case wants it investigated
• someone has learning difficulties that would impair their ability to make an informed choice
• an individual is particularly vulnerable
• the parties do not have the power to settle the issue
• one side is completely intransigent and using mediation will only raise unrealistic expectations of a positive outcome.
There are some issues where mediation can prove particularly useful, however.
There is a clear hierarchy of issues that employers perceive as suitable for mediation. In the CIPD survey of employers who had used mediation, researchers found that:
‘Outstandingly the most suitable for mediation is judged to be relationship breakdown.
This underlines the value of mediation as a method of leading parties to re-evaluate their feelings towards one another, where financial compensation is less likely to be appropriate.’
This view was reinforced by case study
organisations. At the Ministry of Justice, mediation was considered to be an especially effective mechanism for dealing with workplace relationship breakdowns, ‘interpersonal conflict…when people don’t communicate and the gap gets wider and wider, and things get more and more difficult’.
A host of issues can give rise to tensions at work, including arguments over personal possessions, personal space, or the use and misinterpretation of language and behaviours, or poor people management skills amongst managers themselves.
Bullying and harassment: a judgement call – Ministry of Justice
‘Sometimes certain behaviours can be perceived as discrimination, harassment or bullying, when that is not how they were intended. Mediation can be a good way to help the “victim” see the other person’s perspective and help the other side see how their behaviour is affecting their colleagues. This is a difficult area and it is a judgement call for the mediators to make if it becomes clear during mediation that discrimination, harassment, bullying or poor treatment is going on. They would have to consider stopping the mediation. They would not normally do anything about the misconduct themselves due to the confidentiality agreed before the mediation, but they can advise the parties accordingly.’ Ministry of Justice
Bullying and harassment
The other issues particularly suited to mediation are bullying and perceived harassment, and perceived discrimination issues, although each situation needs to be judged on a case-by-case basis, as serious cases of bullying and harassment, and clear cases of discrimination, may need to be dealt with by more formal procedures.
When managers are not well placed to deal with the issue
Mediation can also provide a useful tool for individuals to turn to when managers are, for one reason or another, not well placed to deal with a dispute. This may be because an intervention from a manager may be perceived as biased, or as favouring one side over another. It may be that the manager has insufficient skills in handling people conflict or ‘emotional anger’.
Discipline and grievance procedures In some organisations mediation is written into formal discipline and grievance procedures as an optional stage. Where this is not the case, it is useful to be clear about whether the discipline and grievance procedure can be put into abeyance if mediation is deemed to be an appropriate method of resolving the dispute.
At Bradford Metropolitan District Council the mediation process runs alongside the disciplinary and grievance procedure, and formal procedures can be suspended at any stage ‘to seek an alternative agreed method of resolution at the suggestion of the employee, his or her representative or the relevant manager and the agreement of all the parties’. The policy emphasises that where informal resolution at any stage is not successful, the employee has the right to continue with the formal procedure.
It is grievances that most obviously lend themselves to the possibility of mediation. Managers may not always see it as appropriate to surrender their discretion in relation to disciplinary issues where they believe a point of principle is at stake, such as misconduct or poor performance. However, the line between disciplinary and grievance issues may in specific instances become blurred, in which case the employer may prefer to tackle the underlying relationship issues by means of mediation rather than impose a disciplinary sanction.
Although mediation is often perceived as a form of early intervention in disputes, it can also be used to rebuild relationships after a member of staff has undergone a disciplinary or grievance process.
12 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
City of Bradford Metropolitan District Council
Grievance resolution procedure – flowchart
Employees should where appropriate
mediation can be
effective at various
stages of the procedure.
Communicating the outcome (End of Stage 2)
Agreed outcome or
confirmed in writing advising employee of right of appeal
Appeal to assistant director
seek to resolve the grievance through discussion with their immediate manager. If the grievance is about their manager, employee should raise with the next most senior manager.
If grievance not resolved informally, employee can raise grievance with his/her manager formally. Manager meets with employee within 5 working days of receipt of form. Manager makes any necessary enquiries and reconvenes meeting within 10 working days.
Due to seriousness or
complexity of grievance, an
investigation may be necessary
On conclusion of further enquiries/ investigation of agreed resolution, inform employee of agreed outcome/ results of any investigation or enquiries/ decision to be confirmed in writing.
If the employee is dissatisfied with the outcome, he/she has the right of appeal to his/her assistant director within 15 working days.
The assistant director will arrange an appeal hearing within 20 working days of the appeal being received.
On conclusion of the appeal hearing, employee informed of decision in writing within 5 working days. This is the final stage.
4 THE BENEFITS OF MEDIATION
‘A lot is gained from people talking about their problems before an employee with a grievance goes to the law. Many conflicts are escalated by external involvement. When employees go for external advice, additional claims are always added. Too much formalisation leads to escalation of problems which lead to stress for all concerned, and costs.’
Respondent to the CIPD Workplace Mediation: How employers do it survey report (2008)
Case study: West Midlands Police makes the most of mediation
West Midlands Police launched its mediation scheme in June 2004, with Police Federation support. The scheme was embedded over a 12–18-month period. According to the personnel adviser who co-ordinated the scheme, mediation played a key role in avoiding tribunal proceedings: ‘It keeps you out of an ET. Ultimately it can help you avoid an employment tribunal, which can cost a lot of money.’
The view of West Midlands Police was that a more formal process (such as a formal grievance) involved an investment of time and money for all those involved, and was more restrictive in terms of the recommendations made.
The prime focus of mediation was to find a resolution through joint working. But mediation could also help reduce the incidence of formal grievances. The numbers showed an increasingly downward tendency.
According to the scheme co-ordinator, the use of mediation at an early stage had led to the resolution of conflicts where situations may once have not only escalated but perhaps not have been resolved at all. In the scheme co-ordinator’s view, mediation improved employee relations. There had been a growing awareness of HR and employee relations issues from the informal process that was enabling management to address these. The skills that people learned through mediation could also be used in everyday life, extremely effectively.
The 2008 CIPD survey on workplace mediation showed that three-quarters of respondents considered mediation to be the most effective approach to resolving conflict in the workplace. In the GFK NOP telephone survey of managers in 500 SMEs, of those that had used mediation, 99% agreed that it was a good tool for resolving workplace disputes. The CIPD 2007 Managing Conflict at Work report provided some evidence that organisations providing mediation training for managers receive fewer employment tribunal claims.
Research commissioned by Acas found that:
• The introduction of in-house mediation can have a transformative effect on workplace relations and underpin a new (and more informal) approach in the way that conflict is managed (Saundry et al 2011).
• New skills acquired by mediators influenced their everyday practice and gave them new ways of managing conflict in a wide range of settings (Saundry and Wibberley 2012).
14 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
In the 2008 CIPD survey report on workplace mediation, although in only 16% of cases was mediation said to follow an actual or threatened tribunal claim, in 9% of instances a claim was withdrawn. This suggests that, in the majority of cases where mediation is used in these circumstances, it is effective in resolving issues that would otherwise have had to be resolved at a tribunal. This shows that mediation can be introduced even at the point where relations have broken down and an individual has filled in, or thought about filling in, the paperwork for an employment tribunal claim.
Where a dispute is about the alleged breach of an individual’s statutory employment rights that could lead to an employment tribunal complaint, or where a complaint has been lodged, free Acas conciliation is available (for more information go to www.acas.org.uk).
The business benefits
According to the 2011 CIPD Conflict Management survey report, the main benefit in using mediation is improving relationships between individuals, cited by 80% of respondents, to reduce or eliminate the stress involved in more formal processes (64%) and to avoid the costs involved in defending employment tribunal claims (52%). The 2008 CIPD survey on mediation also identified other common benefits to include:
• retaining valuable employees (63%)
• reducing the number of formal grievances raised (57%)
• developing an organisational culture that focuses on managing and developing people (55%) • reducing sickness absence (33%)
• being able to maintain confidentiality (18%).
’…increased productivity and better morale, getting better employees in the first place, because they realise you are an employer of choice. Less legal action, hopefully cheaper in the long run. And the fact that you are more able to carry out your service provision.’ Equalities adviser and mediation scheme co-ordinator, Customer Service Direct
Case study: Assessing the advantages of mediation at Salisbury Cathedral Salisbury Cathedral is a place of prayer, contemplation and spirituality. It is also a business. There was no formal mediation ‘scheme’ set up; the HR manager would suggest mediation when issues had been referred to him or when he noticed issues that he thought would be suitable for mediation. The HR manager saw mediation as a way of tackling problems without stamping too much authority and, where appropriate, avoiding formal procedures. To him, at its lowest level, it should be part of the management process. It was about getting people in the same room to discuss problems together at an early stage – ‘a commonsense approach in trying to work out differences’.
In the HR manager’s view, there were many potential benefits to using mediation. It: • provides an opportunity for employees to talk in detail about their experiences and express how they feel
• allows a fast response to dealing with conflict, so ensuring that parties do not become entrenched • is especially valuable when dealing with relationship breakdowns, both between employees and between an employee and their manager
• provides a confidential method for dealing with conflict
• is suited to the small, informal environment of an SME where problems can quickly become transparent
• removes the damaging impact that formal procedures can have on individuals’ careers • allows parties to fully understand the perspective of others
• allows parties to identify a way forward
• gives parties a sense of ownership over the outcome of mediation, which enhances the sense of autonomy, trust and responsibility
• addresses conflict that is underpinned by allegations rather than evidence.
Mediation should be considered as a possible component in an organisation’s wider conflict management strategy. It will often be a cost-effective method of resolving workplace issues, when compared with the costs of managing a lengthy grievance process or tribunal claim. Organisations should consider training line managers in handling
‘difficult conversations’ to increase their confidence and skills and so avoid the need for third-party intervention. Some employers may also rely on experienced HR professionals to intervene when line managers have failed to resolve an issue and, by using skills similar to those of trained mediators, they may achieve an effective solution.
16 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
5 IMPLEMENTING MEDIATION IN YOUR ORGANISATION
‘The training was great, very very challenging but positive. It sets you up to understand mediation. When you walk into the room in a mediation you don’t know what you are going into – and that’s the great thing about the training, it does prepare you for that.’
Mediator, Customer Service Direct
The way in which mediation arrangements are introduced and embedded within an organisation is crucial to ensuring their effectiveness in resolving internal conflict. This requires a range of factors, including senior and line manager commitment, gaining trade union support where unions are recognised and having in place the appropriate resources to manage the scheme on an ongoing basis. It also means getting the buy-in of staff for mediation.
Mediation needs to be promoted to employees as a flexible, confidential and less formal alternative to settling workplace disputes, and its potential advantages emphasised. The support of trade unions and employee representatives can be particularly useful in lending the use of mediation credibility and promoting trust in the process. Ultimately, it is the effectiveness with which mediation is perceived that will encourage its take-up by increasing numbers of employees who are locked in conflict.
Choosing a suitable approach
Mediation is not introduced into an organisational vacuum, and the chosen approach should suit the organisation. The degree of formality or informality will depend on the characteristics and needs of the organisation. For example, a larger organisation may opt for a more structured approach and invest in the development of its own internal scheme, which may be more cost-effective in the long run. For a small organisation, it may be more appropriate to buy in the services of an external mediator when necessary. Some organisations choose a combination of the two to suit their particular needs. Impartiality is a crucial element of the mediator’s role, and it may be more difficult for someone in a small company, where everyone knows everyone else, to remain independent.
The case study research revealed a wide range of mediation arrangements, each one suitable for the particular needs of that organisation. Salisbury Cathedral did not have a formal mediation scheme in place, for example, but would refer those cases that were considered appropriate to internal mediation. Similarly, mediation had not been formally described as such at the marketing solutions company. The HR manager used the approach as a way of dealing with cases of conflict that were brought to her by managers or staff. The HR manager encouraged line managers themselves to use a mediation approach to address conflict between individuals. In contrast, the Ministry of Justice had a formal mediation scheme that had been rolled out across the country and included 40 internally trained mediators.
Internal or external mediators?
There are different options for introducing mediation into an organisation: one is to develop an in-house mediation scheme, with trained internal mediators. Another possible approach is to call on the services of external mediators when necessary, possibly as part of a call-on/call-off arrangement where a contract is agreed with a provider to provide their services as and when is necessary. These two approaches are not mutually exclusive and can be used alongside one another.
Some of the factors to consider when deciding whether to opt for internal or external mediation arrangements include:
• cost – setting up an internal scheme is likely to demand more up-front investment
• size of the organisation – it may be more appropriate for a small organisation to use external mediators, who will be perceived as independent
• the amount of experience mediators will get, if an internal scheme is thought to be the best approach.
In the 2011 CIPD Conflict Management survey report, 57% of respondents report using mediation. More than two in five respondents say they use internal mediation only, while fewer than one in five rely on external mediation only. Two in five use both. There are a number of organisations offering mediation in employment. As well as Acas, there are a number of commercial and not-for-profit organisations to choose from.
There are other organisational factors that need to be taken into account before deciding which mediation model is most suitable. It will be easier to introduce mediation into an organisation that already has a culture that is supportive of staff well-being and where the management style is more open and consultative. If there are well-established policies and processes for promoting diversity and well being, and dealing with bullying and harassment, for example, mediation is likely to sit naturally within the organisation’s approach to people management.
The geographical spread of the organisation also needs to be considered at the outset. If there are several sites, nationally and/or internationally, the employer needs to decide how mediation will be made available to all staff located in regional offices.
If there are groups of mediators in different company locations, there will need to be systems and processes in place to monitor and support them. Similarly, if external mediators are being used, thought needs to be given to their regional availability.
Company policies and procedures
Mediation will be most effective if it is consciously introduced as part of the organisation’s approach to people management, and reflected in the culture and policies and processes of an organisation. Mediation may also be written into individual employment contracts. In this way, it will be viewed by managers and employees alike as a legitimate means of resolving conflict. If there are collective consultative
arrangements within the organisation, mediation should also be discussed and agreed with employee representatives.
The 2008 CIPD survey on workplace mediation found that grievance and disciplinary procedures are the main ways by which organisations communicate their policy on mediation. Stand-alone policies on mediation are relatively rare.
Whether or not mediation is incorporated explicitly as an approach within some of the organisation’s procedures is a matter for the organisation to decide. There are a number of different ways in which reference to mediation can be included within company policies, as our case study organisations indicate. For example, at Customer Service Direct (a joint venture between Suffolk County Council, Mid Suffolk District Council and BT), Suffolk County Council’s mediation policy was written into its bullying and harassment policy and the main unions had ratified the policy.
The University of Central Lancashire, meanwhile, was just about to launch mediation as part of its updated grievance procedure. The procedure identified mediation as part of the informal stage – mediation could be used before a formal grievance had been lodged, at any time during the grievance procedure (by freezing proceedings by mutual consent) or at the end, if working relationships needed to be repaired.
At West Midlands Police, mediation was mentioned in the published resolution procedure materials. It was stipulated that mediation was a voluntary process and could be used as an additional tool prior to, or at any time during, the resolution procedure to resolve a breakdown in workplace relations, but it did not take away an individual’s right to the formal procedure.
18 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Mediation is not a quick-fix, or a one-off commitment in terms of time and resources. If a call-on/call-off arrangement is in place for an external mediator, for example, the anticipated cost for mediation needs to be built into the budget. Ongoing support and supervision of the mediation arrangements is needed, particularly if the organisation is operating its own scheme. If internal staff are responsible for conducting mediations, adequate time off needs to be factored into their working week. Mediation responsibilities should be reflected in job descriptions and role profiles. Consideration needs to be given to providing proper cover for those involved in the mediation process. Additional management and administrative support are a real benefit in order to allow the mediators to concentrate on the task in hand.
At Customer Service Direct, mediators were released from their day jobs to fulfil their mediation duties. Mediators aimed to keep alternate Thursdays free for this activity,
although there was flexibility around the timing of their mediation activity. Good administration and co-ordination was considered crucial to the smooth running of the mediation service. This had been facilitated by the appointment of a mediation co-ordinator, a service that was greatly valued by the mediators.
It is good practice for there to be a dedicated person responsible for overseeing the mediation arrangements. The Ministry of Justice, for example, had appointed a part-time co-ordinator to drive forward the scheme and handle the administration and practicalities, including the task of arranging the mediations. The co-ordinator also played an important role in holding preliminary discussions with the parties to establish whether their case was suited to mediation. West Midlands Police had a network of ‘first contact advisers’.
Consideration should be given to developing guidance and tools to support internal staff acting as mediators, as well as more general guidance for other staff. UCLan, for example, had developed a guidance booklet for line managers as well as information for potential participants. The booklet for line managers, whose staff may be involved in a mediation, covered:
• What is mediation?
• Why choose mediation?
• When is mediation appropriate?
• Line manager responsibilities
• Line manager commitment.
The guidance for potential participants covers:
• What is mediation?
• When is mediation useful?
• How do I decide if mediation is appropriate for me? • What can I expect?
• The mediation agreement
• What next?
• Frequently asked questions.
Commitment from managers
Gaining the commitment of senior managers to mediation is key to ensuring that line managers, in turn, buy in to the process and promote its use as an alternative mechanism to resolve disputes.
At West Midlands Police, management ‘bought in’ to the internal mediation scheme introduced by Acas from the outset, with the director of personnel, chief constable, deputy chief constable and senior managers all recognising the value of the Acas model. This level of support, along with the involvement of the Police Federation and other unions, was important in building and improving relationships and employee relations.
Trade union support
‘Where there is a simple disagreement which has escalated, mediation may return the working relationship to a point where it was stable and productive. In our experience, it is rare for working relationships to start badly and get worse. There was usually a point at which the relationship worked and this can be returned to when the parties put the conflict into perspective and remember how they used to work well. Mediation creates an environment in which this can happen. In our experience, this works best where a thoughtless comment has gone unchallenged but led to bad feeling or where a professional disagreement has become personal.’
Trade union representative, Unison, East Lancashire Primary Care Trust
Case study: Gaining trade union buy-in at the University of Central Lancashire The University of Central Lancashire (UCLan) had used external mediators and one internal mediator since 2005. It then trained its own in-house mediators and appointed a scheme manager as part of its own internal mediation service.
The UCU, Unison and Unite trade unions were recognised by the university. HR and trade union interviewees described the employee relations climate as ‘healthy’. UCLan’s experienced mediator cited the unions’ positive attitude towards the introduction of mediation, and their constructive input into the new grievance procedure, as evidence of this. For the unions, mediation fitted with their approach of resolving disputes at the lowest possible level.
Describing the unions’ reaction to mediation, the scheme manager commented: ‘they could see exactly where it fitted with the process and I think they feel comfortable with where their role starts and finishes.’ The unions asked questions about what would happen if someone admitted to something in mediation that could go against them, but they were reassured by the explicit statement in the mediation policy that mediation was confidential and therefore would not be disclosed to anyone outside the mediation service unless it related to a potentially unlawful act or a serious risk to health and safety.
A trade union representative at UCLan said that:
‘Mediation is an ideal way of dealing with ill-defined problems, where there is no clear evidence and a positive outcome from normal grievance procedures is unlikely. It also allows people to be listened to. And it will be useful for problems between peers, which the unions find more difficult to deal with than problems between a manager and an employee.’
Where trade unions are recognised, it is possible that there could be some preliminary mistrust of the mediation. Some trade union representatives could perceive that mediation will weaken their own role, for example, or that individuals’ statutory rights could be undermined. It is essential that the acceptance and support of union and employee representatives are
sought from an early stage in introducing mediation, or there is a risk that it will not be viewed as a legitimate option for settling differences between employees, particularly union members. There is every indication that, where organisations work with trade unions to embed mediation, it is accepted – and even championed – by them.
20 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
‘It’s good to have a cross-section of staff trained as mediators, because then you have got all levels of the department working with mediation and promoting it. If you do have a mediation involving a senior member of staff, then it can help to have a senior mediator.’
Ministry of Justice
If an organisation is developing an internal mediation scheme, a key question is which employees should become mediators and how these should be selected. It is common practice for employees to either volunteer as mediators or to be nominated by their managers. If there is a system of self-nomination, the organisation should be prepared to sift through a large number of applications and disappoint a large number of people, unless the process is effectively managed from the outset. One approach is to establish some basic criteria for nomination from the outset; for example, experience or knowledge of conflict management.
Around 40 employees were trained to act as mediators in the Ministry of Justice. These were drawn from different sites and from across the workforce. Having a variety of employees involved in providing mediation was considered one of the hallmarks of the scheme since it allowed some flexibility in matching mediators to parties. It also helped ensure that the mediation was always provided by people who acted impartially since they had no prior knowledge of the case or individuals involved.
At UCLan, the eight mediators for the university’s internal mediation scheme comprised a cross-section of academic and non-teaching staff. The mediators differed by level of seniority, grade, type of work and gender.
As part of the recruitment process at UCLan, senior managers were asked to nominate potential mediators, and around 15 people came forward. After a mini training event, all made a formal application and were interviewed for the role. The criteria for selection included experience of, and skills in, conflict resolution and an understanding of mediation. Seven of the more experienced applicants, together with the scheme manager, were accepted and training arranged for them. The expectation was that the other seven applicants would also become mediators at a later date.
It is worth considering the suitability of HR professionals to become mediators. Although many HR practitioners would make good mediators with the kind of skills they are likely to have, there could be a direct conflict with their role if they are selected as mediators. It could be that HR is responsible for handling an ongoing or subsequent grievance, for example.
Mediator skills set
This describes the range of skills, competencies and knowledge/experience that make up the mediator skills set – not all of these are essential, and it is unlikely that every mediator will possess all those listed. Many of the specific skills needed will depend on the context, and most mediators develop their skills set as they build up their experience.
Skills and competencies
oral, written and non-verbal communication questioning
Training for mediators and managers For mediation to be effective, mediators need to be trained in the techniques of mediation. They need to understand their role and how it fits within the organisation’s dispute resolution procedures and other policies and procedures, such as bullying and harassment and diversity policies. A knowledge of conflict resolution and the theories of conflict management should also be covered in the training.
theory of conflict resolution
experience of conflict resolution
understanding of equality and diversity issues understanding of HR policies and practices knowledge of power and minority issues experience of facilitating informal groups knowledge of the mediation process
an awareness of the legal context of mediation some knowledge of employment relations
Awareness training for other employees, and for line managers on how and when to use mediation, will also help to embed the scheme.
Training staff in mediation skills generally, to encourage the right management style and the organisational capacity to deal with conflict on a day to-day basis, is a good way to help prevent disputes happening in the first place.
22 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Customer Service Direct
Customer Service Direct stressed the importance of mediator training and mediators being clear about their remit. All mediators received training which was delivered by an external agency. Training consisted of two three-day sessions. The course content included role-play activities and there was an emphasis on process and equipping mediators to deal with any situation that may arise.
Close attention to diversity issues was also important to ensure that the scheme was diversity-proofed. This was helped by an emphasis on equality and diversity issues in training mediators as well as consultation with internal staff networks.
The HR advisory staff dealt with disciplinary cases and formal grievances, together with the HR director, and had been trained as mediators by Acas. The trade union representatives were invited to be trained too and one took part alongside the HR staff. All the trainees thought highly of the Acas training and felt that it provided them with a good framework for future mediation sessions.
To build on this training, the mediators also worked together on mediation role-plays based on case studies supplied by Acas. The HR consultant commented on the need for mediators to have empathy and to learn to ask the right questions – ‘We are going to have to work with a script to begin with.’
East Lancashire Primary Care Trust
Staff from HR, operational management and the trade union were invited to train as mediators. The aim was to address hostility to the scheme from the unions, and uncertainty from HR and management, although there was strong support from senior management. The training dealt not only with mediation skills but deliberately allowed the participants to address the adversarial relations that existed between them. Afterwards there was a clear sense that the training had had a transformative impact on those who attended and in particular on those participants who had previously adopted a confrontational approach to disputes.
Acas mediation training: the Certificate in Internal Workplace Mediation (CIWM) The Certificate in Internal Workplace Mediation (CIWM) is accredited by OCR, one of the three main awarding bodies in the UK. CIWM enables organisations to set up their own mediation scheme and trains their employees in mediation skills. The training course contains five units delivered over five days at times that can be fitted to suit an organisation’s needs. The number of participants is limited to 12 on each course to allow maximum individual attention.
The course provides employees with the mediation skills and strategies they need to become successful workplace mediators:
Unit 1: understanding conflict and mediation in the workplace
Unit 2: introducing the parties to mediation
Unit 3: moving through the mediation process
Unit 4: skills and strategies for managing the mediation process
Unit 5: practising mediation skills.
Trainees are assessed – via written and practical work – to ensure they have reached the standards required to gain the certificate.
At the University of Central Lancashire (UCLan), it was planned to launch the new internal mediation scheme quietly. The intention was to allow the newly trained mediators to gain some experience before formally launching the scheme more widely, with publicity a few months later.
Similarly, the Ministry of Justice allowed mediation to grow gradually in the organisation. There was a view that training too many mediators from the outset could mean that each had insufficient exposure to cases to consolidate their knowledge and skills. Training fewer mediators meant that each could gradually hone their skills through practice.
At West Midlands Police, the scheme was embedded over a 12–18-month period, during which time a succession of awareness meetings were held and marketing leaflets were distributed. It was considered essential for the success of the scheme that key personnel such as HR and staff associations were not only aware of mediation as an available mechanism but that it was at the forefront of their minds and the preferred approach in the early intervention of grievances.
People also need to feel well supported and confident to engage in mediation. This will require a framework to be put in place where internal mediators, for example, have access to a key person, such as a mediation co-ordinator, with whom they can discuss difficult cases in confidence. Conducting mediations can be a stressful experience and so it is vital that there is a system of support for mediators when emotional support is needed.
Whether mediation arrangements represent a formal scheme or are used on an ad hoc basis, thought needs to be given to how these are launched to managers and employees. It is more likely that there will be a formal launch if there is a formal scheme in place. If the mediation arrangements involve the use of external mediators, it is just as important to promote these to managers, representatives and employees so that everyone in the organisation is aware of their availability.
Some organisations may opt for a ‘big bang’ approach and launch the mediation initiative in a high-profile way, while others may opt for a ‘drip-drip’ approach to engage people.
Any new organisational initiative needs to be reinforced on an ongoing basis if it is to become accepted practice. There is little point introducing mediation with a big fanfare if it then has little profile and is not actively promoted as a viable dispute resolution option at every opportunity. Thought needs to be given to the material and channels used to market the scheme.
At West Midlands Police, marketing the scheme to key people was considered vital. Awareness of the mediation scheme was achieved via a series of communication mechanisms, including:
• a leaflet distributed throughout the whole organisation that has recently been revised and recirculated
• regular awareness meetings for key personnel, including both federation and union
representatives and personnel managers
• an outline and overview of the mediation scheme on the website.
24 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
6 MANAGING THE MEDIATION
‘For me, the success of mediation is to bring about some sort of resolution that allows the two individuals to have a relationship at work. It doesn’t have to be a friendly relationship, but a professional one.’ Personnel adviser, West Midlands Police
Ensuring voluntary participation at the Ministry of Justice
‘Sometimes people need time to consider whether to participate. This is particularly true in cases of a dispute between a manager and one of their staff where the member of staff has not been able to discuss it with the manager before requesting mediation. The manager can be cold-called by the mediation co ordinator to say somebody wants to do mediation with them. They might want time to think about it, as it is voluntary, and they need to be aware of what the process is before they enter into mediation. However, they might be unhappy about going through mediation. The co-ordinator will then speak to them confidentially to discuss the issues with them, and talk through the process and benefits. The co-ordinator does not pressurise them to participate.’
Mediation manager, Ministry of Justice
Mediation is not appropriate for all types of disputes. Nor should it be used to replace the role and responsibilities of line management. Above all those participating in mediation must do so voluntarily. Therefore when an issue is referred for mediation, whoever is responsible for overseeing the process, or the mediator themselves in more informal schemes, needs to make an assessment of whether the mediation should go ahead and ask the following types of question:
• What is the conflict about?
• Do the parties want to resolve the issue or are they seeking to apportion blame?
• Is it the right time to intervene or is there a more suitable process available?
• Has the manager tried to resolve the issue? • Are both parties willing to participate and do they understand that it is voluntary?
If mediation does seem the best way to resolve the problem, they need to ask:
• Should we use our internal mediators or would an external mediator be more appropriate?
• Have more formal procedures been invoked? Is mediation a recognised stage and, if not, can they be put into abeyance?
Agreement from the parties
Once the possibility for a mediation has been raised the mediation co-ordinator, or the mediator themselves where more informal arrangements exist, will contact the parties separately. These discussions, which may be face-to-face or over the phone, or even via email, are not part of the mediation process but are an opportunity to:
• explain the mediation process
• discover what outcome each party hopes for from the mediation
• ensure, once again, whether the issue is suitable for mediation.
It can be helpful to provide some documentation about mediation at this point, especially where people are unfamiliar with the process.
The CIPD 2008 survey found that nearly one in ten employers had written mediation into individual employment contracts. However, mediation has to be a voluntary process and it is crucial that individuals are not pressurised into participating. They should also have the opportunity to opt out if they are unhappy with the process.
Choosing and contacting the mediator Internal mediation
Where an internal mediator is used, the most important consideration is the impartiality of the individual selected. It can help the perception of independence if the mediator is not known to the parties and they work in a separate part of the organisation.
If mediators are also union representatives, it may be preferable if they do not mediate between individuals who they might represent in the organisation’s formal procedures in the future.
If a mediator is an HR manager, it may not be appropriate for them to mediate in situations where they may have to deal with the same individuals on the same issue but within more formal procedures.
Incommunities HR mediators believed that impartiality was as important as confidentiality, so they would only act as mediators in those parts of the business where they did not usually operate.
At West Midlands Police, mediators were assigned to cases outside of their own
departments or units. Police Federation
representatives trained as mediators did not mediate in cases involving police officers, whom they might later represent in a formal process.
In a small organisation it is clearly more difficult to achieve the same level of detachment as can exist in a large organisation with different sites and departments. It may be more appropriate to bring in an external mediator, but it does not mean that internal mediation is impossible.
If there is sufficient trust in the process and potential users are confident that mediators are trained, impartial and professional in their role, it is possible to use mediators who are known to the parties.
Other considerations in the selection of mediators might include:
• Would it be appropriate to match the gender and ethnicity of the parties?
• If a senior manager is one of the parties to be mediated, should a mediator of a more senior grade be selected?
• What is the availability and location of potential mediators? You may have to balance the need for a mediator who is not known to the parties with the need for the mediation to happen as swiftly as possible.
If there is no internal scheme in place, there will be no choice but to use external mediation. However, even where there is an internal scheme it may be more appropriate to use an external mediator for a specific case for a number of reasons:
• absolute confidentiality is a priority because, for example, those involved in potential mediation are senior managers in the organisation, or the issue involves a very sensitive situation
• an internal mediator is not available quickly enough • the internal mediator has a conflict of interest.
Choosing the right provider
If the decision is to use an external mediator, there is a range of options. As well as public and not-for-profit sector providers, such as Acas, there are a growing number of private sector mediation providers offering workplace mediators and training for in-house mediators. To decide which provider will offer the most appropriate service for your organisation, it can be helpful to consider some or all of the following:
• What model of mediation do you want to use (facilitative, evaluative, etc)?
• Does the provider have a cultural fit with your own organisation?
• What is their track record?
• Do other employers you know have experience of using the external mediation?
26 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
• Do the mediators have a professional qualification such as Certificate in Internal Workplace Mediation? • Are they accredited by a professional body? • What is the expertise in employment-related disputes?
• Where are they located? How quickly can they provide a mediator?
Discussing contracts and practical details Once you have decided which external provider you are going to use, you need to discuss with them:
• contract letter
• contact details of the parties so that the mediator can contact them direct.
Some organisations use co-mediation and, although it requires a greater number of available mediators, it is seen to have a number of advantages. In particular it allows one mediator to take the lead and the other to pick up on issues that are missed, areas of agreement, or areas that need further exploration.
There are two aspects to timing in mediation. One is when to intervene, and the other is how long it should last, and what space should be left between meetings. Most mediators identify early intervention as desirable, but at the same time if you engage too early people may not see the benefits of going into mediation. And so there is very much a balance to be struck.
From set-up to completion
Mediation can be a far speedier process overall than a formal disciplinary or grievance procedure. If it is to be successful there needs to be fairly tight control over the time it takes to arrange the mediation once the parties have agreed to take part. Mediators at Incommunities commented that ‘mediation must be offered quickly or it won’t achieve its objective of discouraging formal complaints’.
How quickly the mediation can be arranged will be determined, to a degree, by the number of parties involved, the nature of the complaint, availability of internal or external mediators, and availability of parties themselves.
Although it is difficult to be prescriptive about the time frame, a process that is too drawn out will risk the conflict escalating and making a mediated settlement far harder to achieve.
How long do mediation meetings last? The time taken for the mediation itself, as with the overall process, will vary depending on the number of people involved and the nature of the complaint. For those taking part it can be an intense experience, and they will need time to move through different emotional states in order to reach a position where they can empathise sufficiently with the other party to reach a lasting agreement.
In the CIPD online survey (2008) researchers found that: ‘The amount of time spent on the process of mediation was fairly evenly distributed between cases where mediation took less than a day (22%), one day (28%), two days (22%) and longer than two days (28%). Mediation tended to take more time in larger organisations, in the public sector, and where an external mediator was used.’
Once the mediator has spoken to the parties they may have a clearer idea of the minimum time needed. It may be that several different meetings are needed over a period of a few weeks, but it is advisable to set aside a whole day in the first instance.
It may be preferable to leave some time (from a couple of days to a week) between the separate meetings and the joint meeting to give the parties (and the mediator) time to reflect on what happened in the first meeting and to consider how they wish to proceed at the joint meeting.
University of Central Lancashire
UCLan’s experienced mediator said that she expected to complete a mediation within two weeks of being asked to take on the case. If she contacted the parties on a Monday she would expect to do individual pre-meetings with each participant by Thursday or Friday of the same week. She would then need: a couple of days to ‘get my head together and look at the connections between both sides, decide that it is appropriate to go forward, and conduct the mediation [by the end of the following week]’.
Where the mediation takes place is fundamental to the process. Finding a suitable room offsite in a neutral location can help to protect confidentiality and to remove parties from the environment associated with the conflict. There should be a break-out room if things become heated to allow parties time out from what can be a demanding process.
If a neutral location is not available, at the very least it is helpful to have the meeting in a different office, particularly so that colleagues are not aware that a confidential mediation is taking place.
Involvement of representatives
Involving representatives in mediation is not generally encouraged, whether that be a lawyer, a trade union representative, employee representative or friend. The central tenet of mediation is, after all, to provide an opportunity for those in conflict to find their own solution to the situation they find themselves in and for the parties to remain central to the process. Restricting mediation meetings to the parties themselves can allow more open and honest discussion. Allowing representation/accompaniment at the separate meeting may allay fears that an individual has and enable them to see that they do not need that person in the joint meeting.
Pitfalls of representation
One of the pitfalls involved in using representatives is that it may lead to the formalisation of the process.
The role of representatives
At UCLan mediators may allow representation in certain cases if both parties are in agreement. The scheme manager commented, however, that someone from outside the organisation can ‘muddy the waters’, as they only have one side of the picture and don’t understand how a situation can impact on the rest of the organisation. And: ‘If one person says they want to bring a representative then that makes the other person feel defensive and they bring someone, and it escalates.’
East Lancashire Primary Care Trust
‘We don’t recommend representation beyond the first stage. I tell them it’s about the two people in the dispute dealing with the issues. It’s not about the law. Most of the cases involve bullying and even where they are dealt with by a formal grievance they don’t tend to go anywhere. The idea of accompaniment to the initial meeting with the mediators is acceptable, allowing rapport to be established and the rep to withdraw for the main session. Perceptions of turning up with a rep can escalate the conflict rather than support the mediation process. We find, in NHS East Lancashire, that having staff side mediators helps to diffuse concerns.’ Trade union representative, Unison, East Lancashire Primary Care Trust
28 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Moreover, there can be a tendency for representatives to shift the emphasis from joint problem-solving to negotiating for the best deal for their candidate to the detriment of the other party, instead of parties finding their own solution that will benefit both sides. Having said this, the mediator is there to ensure that this does not happen.
Flexibility around representation
There are exceptions, however. The Ministry of Justice, for example, did not allow representatives to participate but parties could have representatives in the room with them for moral support. Trade union and employee representatives can also, for example, play an important supporting role behind the scenes without being directly involved in the mediation itself.
When representation is needed
One situation when a ‘representative’ may be unavoidable is where you have a disabled employee or non-English-speaking employee:
• A disabled employee may need to be accompanied by a carer or, in the case of a deaf employee, for example, by a sign language interpreter.
• A non-English-speaker, or someone who does not have sufficient command of the language to express complex feelings and emotions, will need an interpreter. It will be the responsibility of the employer to arrange this provision.
In these cases you will need to ensure that the representative clearly understands their role and that they, like the mediator, have established practice standards that guarantee their independence, impartiality and commitment to confidentiality.
What happens when mediation breaks down? If at any point during the proceedings one of the parties wants to withdraw from the mediation for whatever reason, the mediator will inform the co ordinator that the mediation will not proceed but will not indicate why or who has decided to pull out.
There might also be situations where the mediator feels that mediation should be stopped. This might happen if:
• it becomes clear that the situation is serious enough that it should be a formal grievance, rather than a mediation
• one party’s behaviour is unacceptable
• one party becomes too distressed to continue.
Outcome and agreements
A mediation may end in an agreement between the parties or there may be no agreement, even where there has been no breakdown in the process. However, the line manager or mediation co-ordinator will not be informed of the outcome or content of any agreement unless the parties have both agreed to it.
It may be that the manager notices an immediate improvement in relations or relations may improve over a period of weeks or months, because it may
take time for behaviour to change. On the other hand, it may not improve at all or even deteriorate further. It may be worth using mediation again in the future or it may be that more formal procedures need to be brought in.
At the end of a successful mediation, the individuals involved may not be firm friends but they will have a professional working relationship.
Using mediation – Linda’s story
Linda and Jean were both on the management team in one part of a small public sector organisation. Linda, the more senior member of staff, had been in the organisation for four years and had been appointed from outside over the head of Jean. The job that Linda took on had been created following a restructuring which had also resulted in a more constrained role for Jean. The relationship did not recover from this poor start. Linda was not initially aware of the full history of the structural changes and said that she ‘inadvertently rubbed Jean up the wrong way’. Around two to three years after her initial appointment, the situation ‘came to a head’ when Linda challenged Jean about her style of management. Jean reacted angrily and subsequently accused Linda of bullying.
Deciding to go to mediation: Linda initially went to HR to get advice about how to ‘have the next conversation’. She said that over the time that she had been working for the organisation she had tried a range of strategies to try to improve the relationship with Jean and to enable a more effective line management relationship between them. However, none of these had worked and she needed to find a solution, not least for the rest of the team. Linda also had concerns with Jean’s style of management and communication, which, because of the poor relationship, she found hard to address.
The HR manager proposed Acas mediation to her as a possible way forward. She was given copies of some case studies of mediation to help her to make a decision. She found these helpful as she did not really have any prior understanding of how the process worked. In fact, she said that it would have been useful to receive more information at this stage to enable as strong an understanding of what to expect. She decided to ‘give it a go’ and was reassured that the mediation would be run by someone who ‘had no baggage’. She described her decision in the following way:
‘Well I think that we’d had quite a lot of one-to-one dialogue. I’d tried things and it had just never really ever been that successful. And so it was like this feeling that there was a real problem…this person had a real problem with me as well…we have to make the things work in a team, this is becoming an issue, we really need to try something different.’
Despite the fact that the decision to involve a third party was a voluntary one, Linda was quite anxious in the run-up to the mediation meeting. A further background factor which made her think that mediation might work in this case was that she and Jean had recently been involved in an away day at which both had undertaken an exercise in management profiling. This had made a start in giving both parties an understanding of the differences in their personalities.
The mediation process: The only contact with the mediator in advance of the mediation was to arrange the time and place of the meeting. The session started with the mediator talking to Linda and Jean separately for about half an hour to set out how the day would go and to gain an understanding of the issues from the perspective of each party. The day was then split into two joint sessions with a break (‘we both became quite emotional at one point’). Each party talked about how aspects of the other’s behaviour made them feel and how it was perceived, and also what had sparked their recent problems. The discussion was ‘not specific, more general with the focus on feelings’. For example ‘I said to her “you said that I was bullying you; that made me feel awful”’. Linda said that she felt that doing this was particularly difficult for a manager because ‘you are not really supposed to say how
30 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
YOU feel’. However, the mediator’s style made this easier. ‘The style she adopted was kind of, you know, very factual…not taking a view…very balanced in terms of, you know, you see it that way…. She…sat back from the conversation more than I thought that she would…my recollection is of a very sort of understanding soft kind of person, but businesslike.’ This approach, which was more facilitative and less directive than Linda had anticipated, helped her to ‘open up more than I expected’.
The outcome: The outcome of the mediation was an agreement on particular ways that they would deal with each other in the future. A brief note sent to them by the mediator was the only record of what was agreed. Linda said that as a result of the mediation the working relationship had greatly improved and there was a lot more trust and understanding between the colleagues: ‘we realised that we did not need to be close friends to work together effectively’. Following the mediation Jean was more ‘aware of aspects of Linda’s communication style as a manager and had a better understanding of her role’. Linda herself was also ‘much more attuned as to what I do that can upset her’. (medium sized public sector organisation)
Evaluating a mediation scheme can be more sensitive than the evaluation of other company policies because of the confidential nature of the process. Asking for feedback from participants too soon can prove unfruitful because they may not feel like filling in forms directly after what can be a highly charged and emotional experience. The manager also needs to be aware of factors which influence the evaluation by the participants, for example the outcome of the mediation and their feelings about taking part in the process. As well as an evaluation of individual mediations, it may also be useful to consider the broader benefits that mediation can bring to an organisation in terms of culture change, such as a more conciliatory management style and better relationships with the trade unions where they are present.
Although no records are kept of the detail of the mediation, an evaluation is necessary to assess:
• satisfaction of participants on their experience of the process
• quality of the scheme
• independence and professionalism of the mediators • the effect that mediation has on any reduction in formal discipline and grievance procedures • improvements in working relationships
• costs and benefits of using mediation.
The central focus of the evaluation will be on the experience of the mediators, participants and line managers. Separate questionnaires for these stakeholders might include questions such as:
• Were you satisfied with the process?
• Were you satisfied with the outcome?
• Would you use mediation again?
• How skilful was the mediator? How did they help to facilitate an agreement?
• Was the case suited to mediation? And why? • Did the mediation have any unintended consequences?
• How long did the process take from beginning to end?
• How long did the mediation itself take? • Has mediation improved the working environment? • To what extent have resolutions reached at the time lasted?
• Have you any suggestions about how the process could be improved?
• What costs were involved?
It can be useful to collect profiling data on participants themselves including age, gender, race, disability, their grade, role, area of the organisation in which they work, and the type of complaint. This can help to establish whether mediation arrangements are being accessed equally by different groups of people. For a large organisation this may pose no problem for confidentiality, but in smaller organisations or smaller units there may be too few cases to protect the anonymity of participants and it may be preferable to limit data collection to the experience of mediation and its impact on the organisation.
If there is any chance that you cannot protect the anonymity of the individual, don’t monitor.
Improving the service
One way to improve the service is to use feedback from participants on the mediators themselves:
• The MOJ gave evaluation sheets to all participants at the end of a mediation that asked for the individual’s views on how the mediators conducted the meetings. These were then sent to each of the mediators to give them feedback. The mediation scheme co-ordinator also looked at the forms to check that there were no issues they needed to address with the mediators.
• At UCLan, the questionnaire for mediators focused on the effectiveness of the processes and, if appropriate, the reasons why issues could not be resolved. Mediators’ comments on these questionnaires were to be used in action learning sets – groups of mediators meeting together to report back on mediations
32 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
(without breaching confidentiality) and discussing how to improve the service.
• West Midlands Police had an anonymous feedback scheme for those engaged in mediation and also held mediator network meetings where mediators could bring forward issues and concerns that had arisen during mediations in order to share best practice. This was considered especially useful by the mediators.
Debriefing for mediators
Where internal mediators are involved, it is important that they have the opportunity to sit and discuss how the mediation has gone immediately following its completion. Those participating in the mediation are frequently upset and emotional, and sometimes aggressive, and this can cause considerable stress for the mediator managing the meeting. An opportunity for some form of debrief is important for their own health and well-being. Sharing the evaluation with the mediator needs to be undertaken with care and with appropriate support if, for example, the outcome of the mediation has not left the parties in a positive frame of mind and is therefore reflected in their evaluation of the mediator.
Such a meeting should be held with the mediation co-ordinator, or HR manager, although they will need to take care not to breach the confidentiality of the parties. If mediators work in pairs this can offer an informal way to evaluate how the process has gone and what they might have done to improve the process or outcome, and has the added advantage of allowing them to discuss the case in detail without breaching confidentiality.
It can be useful to revisit cases a few months or even a year on. And if a line manager has referred the issue to mediation, the mediation co-ordinator may contact the manager to see if the mediation has had a beneficial outcome.
Mediations that for one reason or another break down can, in fact, improve relations over time as individuals have the space to reflect more fully, as the following case at the Ministry of Justice illustrates.
Revisiting a case at the Ministry of Justice ‘Just by having an awareness of how the other people are, they can move forward. Even though at the time they may not agree…but listening to what that other person said, it might filter through to them and they might start to actually think about it.’
‘[In a specific case, one party] made it clear that they wanted to try mediation to resolve long-term issues with another colleague…. The mediation in this particular case was abandoned. But funnily enough a month later I was speaking to the manager about something different and I said, “Oh, how is everything?” and the manager said “Would you believe, since they attended that mediation, I don’t know what happened, but they’re now speaking together and their working relationship is good.”’
Care should be taken when contacting the parties who have previously been involved in mediation, however. For some, having to reflect again on past conflict can open up old wounds and ultimately prove counterproductive.
The broader picture
Having collated data from individual mediations it is useful to consider:
• Time taken to resolve disputes via mediation compared with traditional dispute resolution procedures.
• Are certain cases more suited to mediation? • Does mediation provide more creative solutions than formal procedures?
• Does mediation result in greater or lesser compliance with settlement agreements?
• What are the costs and benefits of mediation? Is there a link to reduction in formal procedures, absence, turnover, productivity of employees?
• Benefits of internal versus external mediation. • What can be done to improve the mediation process and improve its take-up?
Reporting the findings
Findings on the use and effectiveness of mediation should be reported at least once a year and shared with key stakeholders including trade unions,
employee representative bodies, line managers, senior managers and mediators. You may decide that it is worth communicating some of the findings directly with all employees either by email or at team meetings as a way of publicising the scheme. Ensuring that there is a robust evaluation of mediation and that this is effectively communicated is essential to guarantee ongoing support from senior management for resources and from line managers and employees for ongoing participation as well as to make sure of ongoing improvement.
34 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
Mediation is not a remedy for every situation where there is conflict between individuals in the workplace. In some cases there will be no choice but to use a formal procedure. In other disputes, one or both of the parties may not want to take part in mediation.
The success of mediation lies partly in the fact that it is voluntary and the parties enter the process as willing participants with a common goal of wanting to sort out their differences. Forcing people to use mediation, or incorporating it as a mandatory part of a grievance procedure, could be counterproductive and worsen already difficult relations between those involved.
The earlier that mediation is used in an employment dispute, the greater the chance of success in resolving the conflict. The longer the conflict continues, the more entrenched the parties become. Once there is a deadlock it can be difficult to open up the situation and widen people’s perspectives.
The beauty of mediation is that this is a process that can be introduced at any stage of a conflict.
Even after a formal procedure has completed, or an employment tribunal claim has concluded, for example, mediation can be used to help repair relationships and encourage teamwork.
For mediation to be effective, organisations need to consider a range of different factors when thinking about introducing it into an organisation. A decision needs to be taken as to whether internal or external mediators should be used. There are a number of critical success factors to using mediation. No scheme will work unless the workforce, managers and representatives are aware of it as a viable option in settling disputes. And trade unions can play an important role in giving the mediation process credibility and building trust.
Mediation cannot be introduced as a quick-fix to sorting out differences in the workplace. Its benefits need to be properly evaluated and marketed to staff, and adequate resources devoted to its ongoing promotion within the organisation.
Introducing mediation: good practice points
• Mediation has many potential benefits for the organisation – for example, reducing the stress involved in using formal procedures and improving relationships.
• Mediation is not a universal remedy for conflict between individuals and there are some situations where it will not be suitable – for example, if an individual bringing a discrimination claim wants it to be investigated.
• Mediation is a voluntary process and should only be used where both parties are willing to try to resolve their differences in this way.
• Confidentiality is a key element of mediation – anything said during the process should stay in the room and not be disclosed to line managers or HR.
• There is no one best approach of mediation and the type of arrangements in place should suit the organisation and its culture. For some, an internal scheme is more appropriate, while for other workplaces external mediation may be the only viable option. Others may choose to use a combination of the two.
• Some of the factors to take into account when deciding whether or not to opt for internal or external mediation arrangements include cost and the size of the organisation. • There are no strict rules on when mediation can or cannot be used – it can potentially be used at any stage in the conflict cycle, including after a formal dispute has been resolved to rebuild relationships.
• Mediation is most effective when used in the initial stages of a disagreement in the workplace, before the parties become too entrenched in their views.
• Some workplace disagreements are particularly suitable for using mediation – for example, relationship breakdowns and some bullying and harassment cases.
• Setting up mediation arrangements involves setting aside an ongoing commitment in terms of time and resources.
• It is vital that any organisation introducing mediation gains buy-in for it from employees, managers and trade union and employee representatives.
• Mediation arrangements need to be promoted across the organisation and managers encouraged to use them.
• If launching an internal scheme, mediators should be drawn from across the organisation and trained and supported in their role.
• Evaluating a mediation scheme can be more sensitive than the evaluation of other company policies because of the confidential nature of the process.
36 MEDIATION: AN APPROACH TO RESOLVING WORKPLACE ISSUES
The Civil Mediation Council is the recognised
authority in the country for all matters related to civil, commercial, workplace and other non-family mediation www.civilmediation.org It holds a list of registered workplace mediation providers at
Acas is a public body responsible for improving
organisations and working life through better
employment relations. More information about what Acas can do to help is available on the Acas website, www.acas.org.uk, or from the Customer Service Team on 08457 38 37 36.
The CIPD is the world’s largest chartered HR and development professional body, setting global
standards for HR and supporting development of HR professionals www.cipd.co.uk
REFERENCES FOR FURTHER READING
ACAS. (2008) Mediation explained [online]. London: Acas. Available at: www.acas.org.uk/mediation [Accessed 19 December 2012].
ACAS and TUC. Mediation: a guide for trade union representatives [online]. London: Acas. Available at: http://www.acas.org.uk/index.aspx?articleid=1680 [Accessed 19 December 2012].
CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2007) Managing conflict at work. Survey report. London: CIPD.
CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2008) Workplace mediation: how employers do it [online]. Survey report. London: CIPD. Available at: http://www.cipd.co.uk/hr-resources/ survey-reports/workplace-mediation-employers-do-it. aspx [Accessed 19 December 2012].
CHARTERED INSTITUTE OF PERSONNEL AND DEVELOPMENT. (2011) Conflict management [online]. Survey report. London: CIPD. Available at: http:// www.cipd.co.uk/hr-resources/survey-reports/conflict management.aspx [Accessed 19 December 2012].
CRAWLEY, J. and GRAHAM, K. (2002) Mediation for managers: resolving conflict and rebuilding relationships at work. London: Nicholas Brealey Publishing.
DEPARTMENT FOR BUSINESS, INNOVATION and SKILLS. (2011) Resolving workplace disputes: a consultation. London: Department for Business, Innovation and Skills.
FALCONER, H. (ed.) (2004) IRS managing conflict in the workplace. London: Lexis Nexis.
GIBBONS, M. (2007) Better dispute resolution: a review of employment dispute resolution in Great Britain. London: Department for Trade and Industry. Online version also available at: http://www.berr. gov. uk/files/file38516.pdf [Accessed 19 December 2012].
HAYNES, J.M., HAYNES, G.L. and SUN FONG, L. (2004) Mediation: positive conflict management. Albany, NY: State University of New York Press.
HEALTH AND SAFETY EXECUTIVE. (2012) Health and safety statistics: key annual figures 2011/12 [online]. London: HSE. Available at: www.hse.gov.uk/statistics/ index.htm [Accessed 19 December 2012].
JOHNSTON, T. (2008) Knowledge and use of mediation in SMEs [online]. Research paper, No 02/08. London: Acas. Available at: www.acas.org.uk/ researchpapers [Accessed 19 December 2012].
LATRIELLE, P. (2011) Mediation: a thematic review of the Acas/CIPD evidence [online]. Research paper, No 13/11. London: Acas. Available at: www.acas.org.uk/ researchpapers [Accessed 19 December 2012].
MINISTRY OF JUSTICE. (2012) Employment tribunal and EAT statistics, 2011–12 [online]. London: Ministry of Justice. Available at: http://www.justice.gov.uk/ statistics/tribunals/employment-tribunal-and-eat statistics-gb [Accessed 19 December 2012].
PODRO, S. and SUFF, R. (2005) Making more of alternative dispute resolution [online]. Policy discussion paper, January. London: Acas. Available at: www. acas.org.uk/policydiscussion [Accessed 19 December 2012].
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SAUNDRY, R. and WIBBERLEY, G. (2012) Mediation and early resolution: a case study in conflict management [online]. Research paper, No 12/12. London: Acas. Available at: www.acas.org.uk/ researchpapers [Accessed 19 December 2012].
SAUNDRY, R., MCARDLE, L. and THOMAS, P. (2011) Transforming conflict management in the public sector? Mediation, trade unions and partnerships in a primary care trust [online]. Research paper, No 01/11. London: Acas. Available at: www.acas.org.uk/ researchpapers [Accessed 19 December 2012].
SEARGEANT, J. (2005) The Acas small firms’ mediation pilot: research to explore parties’ experiences and views on the value of mediation [online]. Research paper, No 04/05. London: Acas. Available at: www. acas.org.uk/researchpapers [Accessed 19 December 2012].