I am excited to join the Hatch Brenner family as an Employment Solicitor and Workplace Mediation specialist. Originally from Norfolk and relocating from the Southwest, where I practised as a solicitor and developed/led the Southwest side of a successful conflict resolution business, I bring a variety of skills to the table.
In addition to supporting businesses and individuals on a wide range of employment law matters including advice on settlement agreements, disciplinary and grievance matters, bringing and defending Tribunal claims, advising on redundancy/restructures, discrimination, and whistleblowing cases. I am an accredited workplace mediator, trainer, experienced conflict coach and advocate for the benefits of early conflict resolution in the workplace.
I have been engaged by a range of businesses, including large public sector organisations, Higher Education institutions, Barristers Chambers, Housing Associations, Local Authorities, Schools and the defence sector.
I am an accredited workplace mediator with over 7 years’ experience in mediating disputes between individuals and teams. I also sit on the Civil Mediation Council’s Workplace and Employment Committee (CMC); an organisation that aims to raise awareness of the benefits of mediation as well as providing a regulated standard for mediators across the profession and its members. I am currently involved in a project in conjunction with the CMC looking at the mechanisms in place for alternative dispute resolution in the workplace and how this can be improved; a subject gaining attention in the press following Geoffrey Vos’ report published on 12 July 2021 advising that compulsory mediation, as part of ADR practices, is lawful.
What is mediation and when can it be used?
There are three different types of mediation available for issues arising in connection with employment: workplace, employment, and judicial. Workplace mediation is commonly used where the employment relationship needs to be preserved and generally prior to any litigation, whereas employment and judicial mediation are best placed for where proceedings have been issued.
The workplace mediation process will usually start with the mediator meeting individually with the parties to the conflict to gain an insight into the issues and concerns from each parties’ perspective. This will then be followed by a joint session where the mediator will facilitate a discussion between the parties and, using techniques such as positive reframing and skilled questioning techniques, get the parties to explore what is behind their respective positions and try to move them towards identifying shared interests.
Workplace mediation can be used in a variety of conflict situations such as:
- A conflict about different working practices,
- Conflicting perceptions around performance which might lead to allegations of bullying and/or discrimination,
- A conflict about communication styles of management which might lead to allegations of bullying and/or discrimination,
- A conflict about behaviours/relational issues; and
- A breakdown in communication.
It is most commonly and widely used in situations where there are behavioural or interpersonal issues that are likely to (if left unresolved) lead to a grievance being raised.
A grievance process is adversarial; you have two parties presenting their differing perceptions on the issues and what they believe to be the solution to the problem. You will then have the Investigating Officer who considers the evidence and imposes a solution.
The process can never provide a win-win situation for both parties as there will always be one party who is left feeling dissatisfied with the outcome. This might also lead to Tribunal claims or an exit of one or more of the parties involved and the associated legal and recruitment costs.
Instead of being empowered to come up with solutions that both parties are happy with, the parties in a grievance process have very little say in the outcomes.
People in a conflict situation will also tend to take up positions and present their perception of what the problem is, however, when this is explored through mediation, what is often being presented as the issue is not the issue at all and it is what is underneath the surface that is important.
In my experience, as both a mediator and an employment lawyer, where there are interpersonal issues between members of staff, the grievance process often only serves to widen the gap between the parties as opposed to addressing these underlying issues. This is then compounded by the fact that following the conclusion of the grievance process the parties are often expected to still work together and colleagues have been brought into the conflict (perhaps unwillingly) as witnesses in a Grievance Investigation, creating even further tension within teams.
With the pandemic, I have mediated in situations where conflict has arisen as a result of staff cuts where people are feeling that someone else has been treated more favourably than them and potential problems created as a result of issues around methods of communication as well as concerns regarding returning to the office.
When will it be appropriate to use a more formal process?
There are still going to be cases where mediation might not be appropriate.
The most likely will be where there are serious disciplinary allegations e.g. gross misconduct, where there is a significant imbalance of power between the parties or there are potential safeguarding issues. Also, in certain situations, where a party disagrees with a management decision and wants to challenge that decision, a formal determination may be required.
The process is also voluntary so the parties must want to engage in the process. However, my experience is that once you have discussed the advantages and disadvantages of using mediation – as opposed to taking a more formal route (presuming that a grievance has yet to be raised) – parties are generally open to the benefits that mediation can offer them and willing to giving it a try, especially given that the formal processes will still be there for them if mediation doesn’t provide them with the outcome that they are seeking.
I am an experienced conflict coach and accredited to use the Conflict Dynamics Profiling tool. One to one conflict coaching can be used in many situations.
Some examples include:
- Improving knowledge, skills and abilities to manage interpersonal disputes,
- Developing an understanding of how responses to conflict and changes to behaviour can impact,
- Preventing the unnecessary escalation of a conflict situation,
- Preparing for a difficult conversation,
- Preparing participants for the mediation process,
- Addressing matters that might arise post-mediation e.g. unresolved emotions,
- Applying the skills learned in conflict management; and
- Improving resilience.
This is a particularly useful process where there are complex issues that need to be explored, for example where large group conflicts or collective grievances are resulting in dysfunctional teams.
Alternatively, it can be useful where there are no specific allegations but it is clear that people are stressed and impacted by the situation. It is outside of any formal process and unlike a formal process, it is not concerned with who is right or wrong but focuses on finding solutions with a fresh set of eyes.
The process aims to:
- Identify the contributory factors that have led to the situation,
- Adopt a neutral no-blame stance ensuring that confidentiality is maintained wherever possible,
- Test with those concerned various options for a solution,
- Gather and assess all information,
- Identify and explore solutions; and
- Provide a risk assessment concerning the various options.
The benefits of the process include:
- Providing a mechanism to test the impact of options by outlining the pros and cons of the various options for a solution.
- Providing an opportunity for those involved to be listened to, and to talk to someone empathetic. The benefit of this for individuals should not be underestimated.
- It is empowering as it allows individuals to have a say in the solution.
- It can also be a learning process. For the management teams, it will usually provide a wealth of perspectives that are not always immediately evident.
- By reframing issues and discussing future solutions, allowing people to think about the future.
- It can help to ensure that barriers to a resolution can be overcome.
- It enables the organisation to demonstrate its commitment to positively resolving conflict and taking issues seriously.
- It confronts conflict but not in a way that leads to individuals taking defensive positions or worsening the situation.
- It provides an opportunity for individuals to speak confidentially and openly about their concerns resulting in information being shared that is of greater value to the organisation than would otherwise have been the case.
Ensuring that a fair process is followed is crucial for embedding standards of behaviour as well as defending possible Employment Tribunal claims. In addition to advising businesses and HR professionals through disciplinary and grievance processes, I can provide workplace investigation services and provide representation at disciplinary/grievance and appeal hearings.
I can also provide training for HR practitioners or Line Managers on best practice for carrying out workplace investigations. The training is practical, drawing on years of experience, providing tips as well as templates for the preparation of reports.
If you think that you have a situation that might benefit from employment law advice, workplace mediation, conflict coaching, a neutral assessment, you need assistance in carrying out a workplace investigation, or you would just like some further information on how any of these processes work in practice you can contact me via my secretary, Hayley Harbord at email@example.com