An easier way to solve workplace disputes

Mediation is effective but often overlooked

When she won her claim for unfair dismissal against the City bank JP Morgan, Aisling Sykes described her ordeal as "professional suicide... a character assassination. It's horrible."

There is a fast-growing tribe of litigious workers. From September 1998 to August last year, almost 150,000 tribunal claims were made, trebling the 1989 figures. But as Ms Sykes found, suing your employer is stressful, embarrassing and potentially expensive.

You could be forgiven, therefore, for assuming that companies offering mediation are greeted enthusiastically. Yet, as Alex Bevan, lawyer and director of the Alternative Dispute Resolution (IDR) group, explains: "Last year's civil law reforms empower courts to demand disputants attempt mediation. However, employment disputes happen in tribunals where there is no such requirement. Also, many lawyers are suspicious of mediation because quick settlements are less lucrative."

Employment cases account for under 10 per cent of ADR's caseload. Despite this, Mr Bevan is in favour of mediation, believing it to be "structured, assisted negotiation". He says: "Lawyers are present, but a trained, neutral mediator acts to broker a settlement mutually agreed by both parties."

Mediation covers similar ground to that of Acas, the publicly funded conciliation service. However, Acas deals with more than 100,000 cases a year and much of the work is done by telephone, whereas private mediation usually sees both sides meet for one day under the same roof, the parties presenting their cases and withdrawing to separate rooms while the mediator shuttles between them.

"Acas is usually called in when a case is lodged with the tribunal. Mediation happens beforehand so the protagonists tend to be less entrenched," says Mr Bevan.

Slowly the word is spreading. Last year, Europe's leading mediation provider, the Centre for Dispute Resolution, (CEDR) saw employment mediations double, making up 4 per cent of its cases. "Mediation rarely lasts longer than a day and can usually be set up within days," says Virginia Branney, an employment relations consultant and CEDR mediator. "It's generally much less stressful and less expensive than litigation."

For transgressing employers, there is no doubt that a low-cost, discreet alternative to the messy expense of a tribunal is attractive. And Ms Branney believes that as long as mediation is voluntary there is no danger of it becoming another weapon in the corporate armoury. "Its strength lies in its lack of legal power," she says. "As it is a non-binding, process, employees can withdraw at any time to pursue litigation."

Unrestricted by the formal legal remedies available to a tribunal judge, a mediator can arrive at creative solutions - such as a face-to-face apology.

Jane Filby, a manager for the employment service, who went to CEDR to deal with bullying among staff, says: "We used to investigate formally, but that process disrupts the office as people take sides. Even with unfounded allegations, individuals never work together again. Mediation allows workers to express their feelings to management and see behaviour changing."

But is mediation appropriate in more serious circumstances such as sexual harassment or racial discrimination? "In cases where there is a duty of care to the victim and a need to ensure punishment for inappropriate behaviour, mediation would not be suitable."

But Frances Maynard, a mediator for CEDR, has seen cases of sex and race discrimination being mediated successfully. She believes this route gives the complainant more control over the outcome. It also allows expression of feeling without cross-examination and offers the chance to reach settlements not achievable through the courts that carry the same legal status as those from a tribunal.

Sarah Veale, employment rights officer at the TUC, says: "With, say, a serial sexual harasser, I would worry that mediation lets them off the hook." But even so, she too believes mediation is a "vastly under-used service".