DC Talks - Workplace Mediation Works

Listen to the latest episode of DC Talks, where Emma O'Connor & Anne-Marie Boyle discuss the benefits of workplace mediation.

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Emma: 00:01

Welcome to DC Talks, a podcast series from workplace specialist law firm Doyle Clayton, where we take a deeper dive into a legal, leadership or HR hot topic. I'm your host, Emma O'Connor, employment partner and head of client training. My guest on this episode is Anne-Marie Boyle, my fellow employment partner here at Doyle Clayton, co-head of our Bristol office, part-time employment tribunal judge and head of our mediation service Anne-Marie, welcome.  

Anne-Marie: 00:33

Hello, Emma, thank you for having me.

Emma: 00:35

So you're a specialist employment lawyer, HR advisor, litigator, part-time employment tribunal judge, but today we are here to talk about workplace mediation. So my first question is, what made you want to become a mediator?

Anne-Marie: 00:50

Yes, so on the face of it, I am a litigator through and through. I've been specialising in employment litigation for the last 30 years. But in all that time, and I do always do this with clients, I always look at ways of ultimately avoiding that final hearing. And I got to the point where I thought, well, actually settlements can work or you can get the one party to withdraw or whatever, but ultimately that sometimes feels like a win-lose or even a lose-lose situation. And I started thinking about mediation as something that might just deliver that win-win in, i.e. that both sides actually feel there's a positive outcome. So it was something I explored. It was my pandemic project. We all had them. Some made bread and I did a mediation course. And here I am today.

Emma: 01:46

So when we think about workplace mediation, Anne-Marie, what types of mediation are we talking about?

Anne-Marie: 01:51

There are two types. So workplace mediation is often known as facilitative mediation, and that's where it's a process if it started early enough, it's a voluntary process where the parties get together with a mediator to try and resolve their problems. That works very well for certain types, which I'll come on to. The other form, which actually employment lawyers will be more familiar with, is actually evaluative mediation. Now, that's the type of judicial mediation route where parties are quite entrenched and ultimately just need someone to help them facilitate a settlement. So when we talk about workplace mediation, I'm really talking about facilitative mediation, but we also do evaluative here as well.

Emma: 02:40

So you say that it's voluntary, and I just wonder what are some of the benefits of mediation?

Anne-Marie: 02:46

Well, I would say first and foremost, it works. If you use a well-trained mediator, there is a incredibly high success rate of a successful mediation outcome. what a successful mediation outcome looks like can be quite different depending on what people want. I've had some where one person decides to leave. Now, that may not sound like a successful outcome, but it actually helped that person make the decision, do you know what, I'm moving on. So I would say, first and foremost, it has a high success rate. It's also quick. It's something that you can get in place relatively quickly. It's low cost. When you actually compare the costs of things going really badly wrong, getting the benefit of a well-trained mediator in whilst there is an initial cost actually can end up saving you money. And I would say that there is this huge power from the process of mediation. It is solution driven. It gives power back to the individuals to actually come up with a solution rather than having a solution imposed on them. And that's the most, I would say the most powerful thing I've seen with mediation.

Emma: 04:01

So often when we find that we have workplace conflict, be that team conflict or between you know managers and their staff or managers and an individual in most cases I suppose it's very easy isn't it for employers and HR teams to sort of get fixated on “We must go through a performance process“ or “We must go through a disciplinary process”, so I wonder when we think about mediation, when would you say would be the kind of crucial time that HR teams, managers, employers should think about it, as an alternative route to, as you say, you know, giving us a solution?

Anne-Marie: 04:41

Ideally, as early as possible. And by that, I mean, before the 20 page grievance has come in, or before the manager says I'm going to start some sort of performance process. So it is quite early and I've got to say most employers don't think about it that early, I think there was a study from ACAS about conflict in the workplace a couple of years ago and an incredible figure of something like only 5% of employers actually even thought about mediation so I'm trying to spread the message of as early as possible I think you're much more likely to get a successful resolution that way but I have been involved in successful mediations that have taken place following a disciplinary or following a grievance where, for example, the grievance hasn't been upheld but the person hearing the grievance has recommended that the parties undertake mediation. So it's never too late to try it for sure. I think once you get an employment tribunal claim in, you've probably missed your window of opportunity.

Emma: 05:54

Would you say that any type of workplace conflict is suitable for mediation?

Anne-Marie: 05:59

Most workplace situations are mediable, but there are some during my training we're told really aren't suitable for mediation. So, for example, if it's a health and safety issue, if there are very overt allegations of discrimination, probably not. But, the majority of workplace situations, if you think about it, usually arise from personality clashes, different styles of working some people being resistant to change, finding change difficult and by change it can be their role it can be a reorganisation people who've been out of the workplace for a while coming back into the workplace that can often cause issues team disputes so actually the day-to-day stuff that HR deal with, I would say, in the main, are perfectly capable of being mediated. Yes, I always do have a chat with whoever's instructing me initially just to make sure because I don't want to waste people's time but I've got to say in the majority of cases that I've been involved, with there's definitely been a mediable issue 

Emma: 07:12

Do you find I mean as I know you said it's voluntary do you find that the employees are resistant to mediation?

Anne-Marie: 07:20

I've got to say my experience, the person who either has brought the grievance or is the subject of disciplinary are usually quite open to it. It's actually the person they're often complaining about. So it's the manager who says, "Well, I've not done anything wrong. This person's poor performing. Why are you making me go to a mediation?"  And they're the people I have to work on.

Emma: 07:46

What would a typical facilitative mediation process look like, Anne-Marie?

Anne-Marie: 07:53

Both parties have to agree to come along. And I produce, just a little note for them to read, just about what the process is about and what they can expect. But I always see them individually first. So not in any particular order, a nd usually I don't know very much about the background. And that's quite important because this type of mediation is very much about looking forward and often people want to tell me a lot about the past when I meet them. But actually, as I go in, and I go in quite fresh so I see them both separately and that's where I will deal with any reluctance to then move into a group session and that's part of the training I had was the barriers that people will throw up as you know why am I here I don't see the point this isn't going to do anything so I do work really hard and at the end of those individual sessions, I then say would you be willing now to go into a joint session and again I would say the majority of people ultimately do say yes, so then we have a break and then we come back in and have a joint session and at the start of that joint session both sides get five minutes uninterrupted time where they can just talk and I then use that to build an agenda and we agree an agenda and then we work through the agenda and my job is obviously to chair it, to keep it on track to hold things if things are getting emotional, give people time out, you know if I feel like we're stuck somewhere try and unstick things  and hopefully get us towards some sort of resolution and in terms of then the report to HR it's often, because it's a confidential process my report to HR is either it was successful or it was unsuccessful, I leave it to the parties if they actually want to tell HR sometimes things come out of it that they do want to talk about other times they don't but it's, it's that personal private voluntary confidential service that you just can't really have in any other way, I don't think, I don't think there is any other form of doing it.

Emma: 09:53

So when  you start the process and you have your individual meetings, do you agree with both parties what you want the resolution to be? Or is it more an organic process that happens throughout the day?    

Anne-Marie: 10:07

Yes, I don't agree anything. It's ultimately what somebody is looking for. So I will   explore that with them both but often it does simply develop during the day and often that's where you need a good mediator is to come up with some helpful solutions as well, sometimes people are so stuck in a particular mindset that actually they can't see the solution and that's where I think I can add value as well

Emma: 10:36

So I'd imagine in many cases it's not always a legal solution that you're coming up with

Anne-Marie: 10:42

No, no, absolutely not, I mean it I would say 80% of cases are resolved with an agreement that people communicate better. It's often down to a lack of communication or a form of communication that isn't working for both parties. So you get one person who wants to put everything in email where the other person says, "Can't we just talk occasionally?" And when I drill down with this particular person, it's one I was doing recently, actually, I said,  "Why do you put everything in email" and she said "Because I don't trust him". That was the issue, So,  then we had to work on trust and where did that come from and actually it came from a place where she felt he was telling his partner things and they were coming and actually we were able to then explore that I mean I didn't because I heard about it in the private session, I didn't then raise it but I sort of gently moved her along so that she was able to look him in the eyes and said " I'm sorry, but that's why, because I don't trust that what I say isn't going to be misinterpreted." And then we agreed, well, how can we build trust? And to be honest, at the end of the day, with that particular mediation, it was going to be a slow process. You can't just build trust like that. It will take a while. So, I don't always know then how well it works out, but that's the joy and beauty of it as well.

Emma: 12:09

So would you say that is why of the benefits of having an external mediator come in to  assess help and facilitate because you can have that kind of, overview of everything that maybe somebody internally just can't have because they're almost too close?

Anne-Marie: 12:26

Definitely and that's why when I have initial call with HR and they say should I give you the background and I’m like “Not really” you just tell me the names of the job titles and you know like a couple of sentences and that's it and as I said sometimes I can tell from HR they're itching to tell me because they're so involved and they want a solution you know as well so and I think it people open up to people who are strangers believe it or not and find I've not found I mean obviously part of my training is about building a relationship quickly and being empathetic  and those are the skills I think I can bring to this, that I can build relationships quite quickly because you have to, to get people to trust you. But, actually they open up to you in a way they often don't because they think, well, where's this going? Is this going on my file? Well, of course it isn't because I don't even take notes.

Emma: 13:21

And I think that's the thing, sometimes people are so stuck in the weeds that they can't actually, see the sunlight and actually having somebody come in externally who, as you said, doesn't know all the background, simply knows names, jobs, titles and a brief synopsis actually can be incredibly helpful and incredibly powerful so Anne-Marie, you know, when we think about the statistics and I think you know it's sort of about five percent isn't it of employers who are currently using mediation, why do you think that figure is so low?

Anne-Marie: 13:52

Well, I don't honestly know, I was genuinely surprised by that so it makes me think well I've got a mission to try and do that I think because if you think about it, and we're employment lawyers,  you have someone call you up and say "We've got this employee and they're doing this"  and you say “Well have they tried the grievance process” and I think that's probably, you know, probably comes from us in some respects say "Well, maybe put them through the grievance process or put them through this process". I wonder how many employment lawyers stop at that point and go "Have you thought about mediation?" I certainly do now, but hand on heart, I did not before I did my mediation training. So, and I think the costs of conflict in the workplace are vast. And I think if you, as with anything, if you go to the bottom line with a company or organisation and say, do you know how much conflict costs? Because, and by that, I mean sickness absence, people not doing their full day's work because they're so annoyed and just sending you grievances. The costs of somebody investigating a disciplinary, the cost of someone doing an appeal, the costs of then a tribunal process, the costs of settlement agreements. You build all that in, it's vast. I mean, I think there was an ACAS report on conflict in the workplace. It's a couple of years old now, but I think it estimated that in the UK, conflict costs 28.5 billion pounds a year to organizations which I think works out something like a thousand pounds an employee you think well I'm sure you could spend that money much better elsewhere but, you know, conflict exists. Conflict is not a bad thing, I know the word has different meanings the fact is when people disagree that can be when the most creative solution comes about but it's about how do you manage conflict in a positive way rather than seeing it as, right, a bad thing, therefore we must do this process. Actually, there are some really good ways of ensuring that you manage conflict creatively in your workplace. For example, you train your managers to be people managers. I think you and I know that often people are promoted because they're great at their job, not because they're great at managing people. If you promote anyone, there needs to be that people management skill And that just needs to happen more. I would say having an employee voice, having employee representation so that you just don't have all those low level resentments. I mean, mediation is definitely an answer, but there are actually other things you could do before that with training, with having employee forums, those types of things to manage conflict in a positive way.

Emma: 16:51

Yeah, absolutely. And I think, you know, when we think about the costs, we often think about the individual costs, isn't it, the individual time but also it's the wider impact isn't it it's the wider impact on teams morale,

Anne-Marie: 17:03

Absolutely

Emma: 17:04

Productivity across the piece so you're absolutely right

Anne-Marie: 17:07

You can't put a figure, it's hard to put a figure on that  

Emma: 17:10

Absolutely, and you're right there are many things that employers can do and I think particularly around that sort of training piece,  behaviours, good role modelling behaviours that we want our  managers and our leaders to have because they are so vital in terms of delivering success. So we talked about, didn't we, Anne-Marie, when you mentioned there were two workplace mediations, one being facilitative, which obviously you are involved in as a workplace mediator. And the other type of mediation that you mentioned was evaluative. I wonder if you could just give us a little bit more information about what that is and in what circumstances employers might either avail themselves of it or  find themselves in?

Anne-Marie: 17:54

Yes. So this is the one that I would say is more similar to judicial mediation. So employment lawyers will be familiar with this concept. It's offered by tribunals where the case is likely to last longer than three days. And there you will get a judge. I'm actually a judicial mediator as well. So I do those. You get a judge at your disposal all day and that tends to start with, in the opposite way to workplace mediation you have the parties together initially and then you send them to separate rooms and then largely shuttle between the two and it's obviously still an alternative to litigation. Now,  for whatever reason tribunals don't offer it to every case and sometimes one party or another just doesn't want to go through that process so that's something we offer as well, whereby  I can essentially act, not as a judicial mediator, but essentially as an evaluative mediator where I can go between both sides, look at the strengths and weaknesses so there's  much more involvement in the backstory. I would typically be involved after disclosure, after witness statements, so that I can get a feel for the case. I would say it works particularly well where you have one side that's a litigant in person because they don't, they often have, and no disrespect to litigants in person but they often have an unrealistic view either of their merits or of compensation so it can help I can't give advice but I can certainly say oh I think you know from a Tribunal perspective, just from the case law this is the type of award you might get these that, you know, these are the issues that you'll have to prove, where's your evidence so it works best there I think,  when you've got two solicitors either side, they often know  the merits but there are cases where I've been involved where two solicitors have simply just fallen out and then I've been brought in to just try and I'm going to say knock heads together but I would say in the main they are much more focused on money those types of ones it's about well okay what's the settlement you know you can have obviously things around that with references or recommendations but mainly that's a let's get this litigation off the table let's let's settle it so that's those types

Emma: 20:17

So are there any types of clients or companies that you would say, benefit from mediation? Does the size of the company or employer matter?

Anne-Marie: 20:26

Do you know, I think and I guess I would say this, I think it can benefit any type of organisation. From the very small, if you think about it, from those small family-run businesses, you know, I think there's, there are specialists who just do family businesses because of the nature of relationships but right through to  your multinationals but also I've used it effectively in colleges at the education sector, charities, particularly charities because they don't actually have a lot of money to fight cases or settle and I would say that in the main charitable organisations are much more open to this and see the benefits of it but you know, I would say it literally fits all sizes, I couldn't think of an organisation where it wouldn't actually be beneficial

Emma: 21:20

So Anne-Marie what would you say your approach to mediation is?

Anne-Marie: 21:26

So, with a facilitative mediation it's, I think I've probably already mentioned, it's about coming in quite fresh and not having any set ideas about what the nature of the conflict is. I then, when I meet the people individually, it's about building trust and a relationship with them as quickly as possible so that I can understand what their issues are. I try very hard with those sessions. If people are talking about, “They make me feel like this”, ”He does that”, “she does that”, I'm trying to flip it around to them starting every sentence with “I”. It's much more powerful in a joint session if someone says “I feel over managed” or “I feel  disrespected”, it's much rather than “You make me feel”. People stop listening if they just feel it's being accused they're being accused so um so I and I work through what the good and the bad look like, for example, with one recently I talked about we started talking about what the strain of the issue was having on her family and she had teenage children and I said “Do you think they're aware of it?” and she was saying “Absolutely” and I said “How would it feel, do you think, to have this summer where you're not stressing about this and the kids realise that you're not?” and I think just even putting you in that place thinking “Gosh, there's is a world where I don't have to stress about this anymore but I have to do something” so it's called the in mediation terms it's called the 'BATNA' and the 'WATNER' and it's the “best alternative to a negotiated settlement” or the “worst alternative” so I do explore best and worst with people. So  it's yeah I say building rapport getting them to a place of thinking about well what solutions what do you need to do you know taking responsibility because there's always two sides, always two sides,  so,  I really try and avoid making one person the baddie because it's rarely the case. Whereas, flipping over with evaluative, I always know a lot more about it. It comes from a completely different place where I'm thinking quite early on about strengths and weaknesses, what evidence would look like. But again, it's still about building a rapport with individuals. And again, talking about the 'BATNA' and the 'WATNA', the best alternative and the worst alternative. What does that The fact is, no matter what people say, I'm sure you would agree, Emma, the person who wants their day in court is a rare, it's a rare thing. It's a unicorn. It's a unicorn. And so most people just want to find a way out of it. And I think employment lawyers, we can help. Actually, there are these get-off points. There are these jump-off points at every stage. There isn't a sign of weakness. It isn't that means they've won. It's actually pragmatic response to conflict that means people can just move on quicker and not be so damaged by it so the power is in the process, I'm going to keep saying that, Emma,  because I really do think that it's a powerful process that is underused so if I just get the message out that any employment lawyer listening to this, think about it more often and earlier I'll have done a good job

Emma: 25:00

So, where can people find out more about Doyle Clayton Mediation,  Anne-Marie?

Anne-Marie: 25:06

So, if you type in Doyle Clayton Mediation you will come up to our mediation page so there's a little bit about our services there, I think there'll be a link then to my email and I'm always up for a chat with anyone about it, so if you, if you've listened to this and thought oh I've got something that might suit that please just give me a call, I'm very happy to have a chat with you about it what the process would look like how much it would cost and I've also got some notes that I think are quite helpful I can send to potential organisations who might be interested so that they can distribute that to   people who might they might want to get involved with mediation

Emma: 25:48

So my thanks to Anne-Marie Boyle for joining me on this episode of the podcast

Anne-Marie: 25:52

Thank you for having me Emma

Emma: 25:53

I think it's always very interesting to hear a different perspective. So, remember, please, to like and subscribe to DC Talks wherever you find your podcasts. And I will put all the information about Doyle Clayton mediation into the show notes. Thank you very much. Until next time.