Fri 15 Nov 2019

Mediation as the new normal?

With an increasing number of employment tribunal cases going to mediation,  an innovative report by Scottish Mediation this year promoted the "normalising" of mediation within the civil justice system as a whole.  

You can view the report here:

Although mediation has been available as an alternative tool for resolving disputes for years, it's use is still not widespread and is fairly unusual, particularly in employment law disputes. 

One reason for that is a lack of awareness - parties often don't know that mediation is an available option, or they are not informed about how mediation could help.

As well as a lack of awareness, a common misconception is that a mediator will wade in and sort things out, taking the control away from the parties to the dispute.  Why then would parties choose this over litigation, particularly when they'd have to pay a fee for mediation? 

On the contrary, mediators are impartial facilitators to negotiation.  They are not responsible for the outcome of a dispute in the same way as a judge would be.  Any agreement would have to come from the parties to the dispute and they would not be forced to accept any outcome.

Mediation is designed to be a more gentle approach, taking each party on a journey to meet in the middle as opposed to leaving them stranded to shout about why their opposition must be defeated.

It is therefore a process which can make a difference to the overall experience of being involved in a dispute.  Rather than resulting in one winner and one loser (or two losers, when you consider overall spend of time and money), mediation provides scope for compromise, often resulting in novel outcomes tailored to the needs and wants of the parties to the dispute.

In some cases, it could assist in repairing and preserving relationships.  A mediator will seek to understand the barriers to resolution and the emotions involved in the dispute in order to create a process to best facilitate the building of a bridge between the parties. 

With the focus on trying to come up with solutions to suit both parties, mediation can avoid the uncertainty which comes with litigation, thus giving some of the control back to the parties of the dispute.

Mediation will not be appropriate for every dispute.  But surely it ought to part of the new normal for resolving disputes?

#emplaw #scottishmediation #mediation #employmentlaw #2020theyearofmediation



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