I was recently asked by somebody who had attended an ACAS mediation training course, “why is it that discrimination claims can’t be mediated?”
Every time I hear this it makes my blood boil. This isn’t the case at all - in fact it’s quite the opposite!
This is one of the many reasons the ACAS training is not suitable for external mediators - they don't deal with the difficult stuff - wheras even on our internal mediator three day programme we use a real life discrimination case.
A large proportion of cases we mediate involve some level of discrimination claim or accusation, ranging from subtle hints, right through to allegations around every protected characteristic there is.
Many clients who come to us for mediation do so on the back of similar “you can’t” advice from ACAS - or they have started a mediation, discrimination has been mentioned and therefore the mediator has walked away.
Walking away is against our ethos - a proper, professional mediator never (and I mean never!) gives up. We’re being paid good money to help people and that’s what our job is, no matter how tough the going gets.
Given that we currently run at over 95% of cases which reach a resolution, it blows the ACAS theory out of the water - so why would they advise this?
The simple answer is because these cases are harder to resolve, so they need a mediation specialist - not conciliation or arbitration.
Their acronym spells out the areas where ACAS are real experts:-
Advising on general employment matters, eg their excellent codes of practice around disciplinary processes and many other aspects.
Conciliation - for example before an employment tribunal. This is the attempt to get the two parties to meet somewhere in the middle (often financially). Conciliation is not mediation - far from it!
Arbitration - this couldn’t be further away from mediation, as it’s where a third party such as ACAS make a decision about a case.
Services - they provide all of the above services.
I am a huge fan of ACAS and what they produce, as I am with any authority in their field - but as those who know me well often hear me say, there is no ‘M’ in ACAS for a reason!
Mediation is a specialism and it takes certain skills and confidence to delve deep into some often very difficult conversations - this is one of the reasons why we carry out all of our mediations under a ‘without prejudice’ confidentiality agreement.
We’ve had cases where the parties have been through conciliation which has failed miserably because they’ve been encouraged to move their position when they didn’t want to.
That’s why conciliation so often doesn’t result in a resolution and today there are around 50,000 employment tribunals backlogged in the UK.
Without wanting to get too technical, conciliation is about position bargaining - mediation is about properly understanding people’s interests, engaging them in proper conversations to understand perspectives in order to reach a mutual resolution.
It’s one of the reasons why such a high proportion of our mediations result in a resolution.
I’ve often argued (so far unsuccessfully) that implementing proper mediation by real mediation specialists would hugely reduce the burden on tribunals and, much more importantly, would save the huge stress that people invariably endure.
Let’s put the numbers together - 50,000 cases and 95% success rate. That’s 47,500 cases that probably don’t need to go to court!
That’s 47,500 claimants (plus all the witnesses on both sides) who could avoid the immense stress of preparing for employment tribunals and waiting a year or more to get there - and that’s before we even think about the huge financial cost to employers and employees.
The really scary thing though, is that those 47,500 cases are merely a drop in the ocean.
The vast majority of cases won’t get to a tribunal because people suffer, they just leave or they don’t want the stress of it all.
The beauty of mediation is that it isn’t replacing the right to a formal grievance, disciplinary or a tribunal - they can still be used if needed. But why would they when they’ve been helped to understand each other properly, and reached their own voluntary and mutual resolutions to build their working relationships?
So, the next time you’re advised that a discrimination claim or bullying claim can’t be mediated, or employees need to raise a grievance, put some time in my diary to discuss the case and how mediation can help.
I’m always happy to chat!
Other blogs that may be of interest:-
Why your grievance policy should be gathering dust
Why I see formal grievances as a failure