On an almost weekly basis we hear the foreboding news that cuts to the public sector will bring co-ordinated industrial action and civil unrest.
However, it’s not all doom and gloom as a recent joint announcement by ACAS, the employment relations service, and the TUC espouses the virtues of mediation, and may point towards a new approach to resolving disputes by the union movement.
ACAS and the TUC have published a new 18 page guide for trade union representatives which explains how mediation can compliment their role in helping to avoid costly disputes. The introduction points out that whilst not offered as a panacea mediation can offer a way to avoid the potentially disruptive effects of drawn out conflict.
The new guide explains:
- What happens during a mediation,
- The role of representatives in a mediation and how to support members,
- How to work with employers to set up mediation arrangements,
- How mediation fits with other workplace procedures and agreements, and,
- How Trade Union representatives can act as mediators.
A culture change?
The Chair of ACAS, Ed Sweeney, noted the change in direction, when he opined: “In the past there has been some reluctance to use mediation within the union movement as it was seen as a possible barrier to justice. Despite some apprehension, we are increasingly seeing evidence of trade unions recognising the benefits it can bring to their members.”
Philip Henson, comments:
Whilst I am pleased that the virtues of mediation are being promoted by the TUC and ACAS, unfortunately the new guidance sends some mixed messages. The comment that “it [mediation] can also be used to rebuild relations after a member of staff has been through a disciplinary or grievance process”, points towards mediation being seen as a tool for reconciliation after each disciplinary or grievance process. Whilst in a Utopian world that might be an ideal way to restore the relationship between the parties, mediation should not be an automatic add on to the end of the existing grievance and discipline procedures (as can be inferred) as such a proposal would bring an unjustifiable amount of pressure on management time and resources; particularly for any SME’s who do not have a dedicated HR function.
I also find it difficult to reconcile the declaration that mediation can be used “at any point in the conflict cycle”, with the comment later in the guidance that “it [mediation] should only be used where agreed procedures have been exhausted or the parties agreed to put them in abeyance”, which appears to indicate that mediation might be seen as a process of last resort.
Furthermore the declaration that mediation is “morally binding and has no legal status (unless the parties so desire)”, does not clearly explain the benefits of setting out the fruits of the labour of the mediation in an agreement between the parties.
The section “can trade union representatives be mediators?” promotes the skills of trade union representatives to employers who are looking to recruit internal mediators. It continues that where trade union representatives do act as mediators they should “avoid mediating for individuals who they also represent”. In fact what they should clearly be stating here is that if you are a mediator and you are asked to mediate in a dispute involving an individual that you already represent then you will not be able to act as a mediator as there will be a clear conflict of interest.