Resolving employment disputes in the education sector through mediation

By Diane Gilhooley and Michael Ord

September 11, 2008

Mediation can be useful tool in resolving employment disputes

Given the costs and risks associated with employment tribunals and court litigation, employers will often wish to seek early settlement of employee claims. One approach to settlement is “mediation”. Mediation is an agreed, voluntary and non-binding process by which a neutral and independent third party helps the parties to reach an acceptable solution to their dispute.

Agreed mediation

For mediation to take place the parties must agree to it. That could be done by building into internal grievance processes an agreed option for mediation at a particular stage, or by individual agreement at any time.

Voluntary mediation

Mediation works when parties are willing to settle. No one can be forced to mediate, and no one can be forced to settle. If a party is not willing to try to resolve the problem, mediation will not work.

Non-binding mediation

All aspects of a mediation are without prejudice and confidential. Therefore a party can explore settlement options (“what if we did this…”) in a constructive way without risk that the proposal can later be used against them.

The third party

The independence and neutrality of the mediator is, of course, crucial. Both sides must invest trust in him/her, and the ability of a mediator to build rapport with both parties is vital. During the process the mediator will receive and retain information that is wholly confidential to one party. They must be trusted to retain and not reveal that information, unless they have permission to do so.

Acceptable solutions

Unlike other internal or external processes, mediation works because the parties themselves provide the answers. No one judges, decides or resolves the dispute, other than the parties. It is, after all, their dispute, and therefore a “ solution” will work only if they agree to it. The key to this is the focus that the mediator puts on the future, not the past. Unlike other processes that are designed to find out what has happened, mediation focuses on what will happen and (for example) how the parties will work together in the future or how incidents of discrimination can be eliminated for the future.

How and when to mediate

Do not be afraid to propose mediation. It is not a sign of weakness to do so, rather it shows a willingness to resolve not perpetuate disputes. There are many mediation service providers, and almost all mediators will accept direct instructions. Most local courts have mediation schemes and will advise on where to find mediators. There is no “set” form of mediation, and the mediator will guide the parties through the process.

Not all disputes are right for mediation. If a party is seeking to establish a precedent, then a mediation would not be right, but otherwise almost all internal and post-termination disputes can be resolved through a mediation if the parties agree.

Finally

Mediation can be effective. About 80 per cent of cases are resolved in one day, and most of the remainder settle shortly thereafter. Apparently intractable internal grievances, complex claims for discrimination, issues involving staff, students and third parties and both individual and collective disputes are all areas where mediation can deliver results, in addition to the more “straightforward” claims for unfair dismissal etc., without publicity, without escalating the problem and with a more co-operative mindset than traditional negotiation.

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