Mediation in the Workplace; Are we going backwards?

We expect to have a Mediation Bill next year which will transform dispute resolution in the civil and commercial sector. And yet, we appear to be going backwards in relation to mediation in workplace and employment rights disputes. For more on mediation and ADR please click here

In my submissions at the consultation phase of the workplace relations reform programme I argued strongly for an early intervention mediation service, at the same stage in proceedings as the Conciliation service that operates in the LRC for traditional disputes. (You can read my submission to the review here)

But also conscious that there was a cost cutting aspect to this I suggested (not entirely disinterestedly) that a panel of private mediators might be established for this purpose.

This was rejected, although I got to discuss it with the senior official then driving the project who was alive to the importance of mediation as an option.

But when it emerged there was never much of a serious attempt to represent the Early Resolution Service as a mediation option. It is little more than a ‘triage’ step and this is a disappointment especially in terms of getting real ‘Early Resolution’ of employment rights disputes.

I am a huge fan of the Rights Commissioner service. Their willingness to mediate settlements (having heard the parties) is a huge advantage in most cases, although you can’t always rely on the Commissioner acting in this way.

It is not strictly within their brief to act as a mediator/dispute resolver, although thankfully most of them do. But I have had experience of them going straight to hearing and then issuing a recommendation when you were hoping otherwise.

However it is not without its critics. Some solicitors in particular dislike it and criticise how it is done.

As it happens the entire Rights Commissioner/EAT structure looks set to be washed away over the next couple of years.

I don’t think one can view the proposed Adjudicator system as a direct replacement for the Rights Commissioner service.  It will provide a first instance hearing and have jurisdiction for all cases.  I assume it will be required to adopt the EAT ‘evidence only’ approach rather than the more informal submissions approach currently used. (Also I’m not sure what will become of traditional non statute-based employment rights cases cases submitted under the 1946 Industrial Relations Act).

One worry about the new Adjudicator layer is that the draft legislation appears to be written in such a way as to specifically exclude the possibility of settlements in the manner the Rights Commissioners currently do them.

As the draft legislation is written it requires a written determination to be issued following the hearing which seems to exclude the Rights Commissioner type of fix!

They could, of course facilitate the parties as the EAT does by delaying the hearing while the parties battle it out in the corridor but this is not quite the same thing. With the Rights Commissioner you know that if you weren’t roughly within the area s/he was thinking of issuing an award you would not fall too far outside that in a settlement.

There are two problems at the moment; the critical problem is delay. A good proportion of cases are settled at the EAT but the best part of two years after they have arisen (76 weeks in Dublin at the moment from referral to hearing) and longer at the Equality Tribunal.

While the employer has the option to object to a Rights Commissioner hearing in a limited number of cases they are inviting greater exposure at the EAT and entering unknown territory if they do so.

The new system may well take care of the delay problem; only time will tell.

But the second question is how we get early, effective and amicable resolution of disputes both those involving an end to the employment relationship and those which don’t.

While it has not really been a priority for any of the social partners (despite certain tokenistic references to it in the Code of Practice and elsewhere) the option to mediate is still the best one and the issue that arises is; if the state is not prepared to do it are there options for private mediation (or even arbitration) of claims.

On the former it is settled law that even statutory, rights-based claims can be compromised (i.e. settled) subject to a number of considerations, which if fulfilled will result in the settlement terms being enforced by the EAT.

I favour amending Grievance and Discipline policies first by re-styling them ‘Dispute Avoidance and Resolution’ processes and then introducing a mediation step, both for internal discipline issues but also for rights based claims even where the employment relationship has terminated.

Will this ‘bind’ former employees? Well that is far from certain and may be unlikely. And there is controversy about the idea of any suggestion of ‘compulsory’ mediation, but the alternative of a long wait for a hearing might make a little bit of pressure to get around the table more attractive.

But the new draft civil mediation legislation (due early 2014) will enable a court to penalise even a successful litigant who has behaved unreasonably at the mediation stage and revised Rules of Court already in place permit this even now. There is well established jurisprudence to this effect in Britain (see Halsey v Milton Keynes Trust)

This legislation, when enacted extends to employment disputes in certain circumstances. Obviously costs do not arise in the employment rights world but it would be a start if the state discouraged the processing of claims within the formal system if they had not been through a mediation stage. I have seen many cases where employees referred cases to the Rights Commissioner service (more accurately their solicitors did) while discussions were still underway at local level.

But in general terms the age of mediation is upon us and it will be in increasing use in civil and commercial disputes in the future. It surprises me how slow business organisations have been to embrace it and even slower to look at its potential in employment disputes.

For example, could there be industry or sector based mediation services, although it is likely that the employer would end up paying. But if costs could be spread more broadly, and resulted in earlier and more amicable dispute resolution this might be a very welcome thing to employers.

In arguing for his reforms Richard Bruton has exploited the widespread (and  much of it justified) dissatisfaction with the EAT in particular. (In general, I support the reforms and disagree with criticism of them from the legal profession).

But the point is they only replace one system of arbitration or adjudication with another. Even if its better in that respect employers (and unions) need to do more to reduce the referral of disputes outside the workplace, or at least to a place where resolution is possible, early and cheap!

The actual ‘early (and amicable) resolution’ of disputes remains a missing link in the Bruton reforms, even allowing for the greater role NERA will have in minor claims such as Terms of Employment (Information ) Act compliance issues. It is also at odds with this Government’s general policy to alternative dispute resolution which is hard to understand.