Updated: Aug 13, 2019
It is a fact of life that people fall out and conflict arises. When it does, what should the parties do about it? Resolving conflict is not as easy as initiating it!
If you are one of the parties involved, conflict is very stressful and your attitude will probably vacillate between:
wanting to “stick the boot” into the other party;
not knowing what to do; and
wishing it would all go away.
If it is a conflict in the workplace and it is your job to manage the people involved, you will probably have a view on who is at fault and go through similar thought processes.
As a mediator, I am bound to say that mediation is the best way to deal with conflict - the involvement of an impartial and independent third party helps bring a resolution in 70-80% of cases. And it does so quickly and at a tiny fraction of the cost of other methods of conflict resolution.
However, it doesn’t usually make sense to bring in a mediator at the very first sign of conflict. After all, it might well blow over.
So when is the right time to call in a mediator?
Every case will be different but it is possible to draw from experience some general rules of thumb:
1. The earlier mediation takes place, the greater the savings in terms of costs, time, disruption of business, sleepless nights and damage to relationships.
2. Where court or tribunal proceedings are contemplated, it is essential that the parties obtain legal advice before mediating: a mediator cannot offer legal advice.
3. If the dispute is one which, if not resolved, will end up in the County or High Court, the Civil Procedure Rules make it clear that the issue of proceedings should be a last resort - so mediation should precede that step.
It is usually best to wait until the parties have identifed the issues between them and have some idea of the amount at stake. This probably means waiting until the parties have obtained any appropriate expert evidence. Often the parties wait until after service of a pre-action Letter of Claim and Letter of Response, though this is not strictly necessary because the parties can set out their respective positions before that point in Position Statements drawn up for the mediation.
4. In employment cases, where a claim is to be made against the employer, the Claimant has a period of three months from the problem at work happening to issue a claim, and so the normal procedure would be to wait until a claim form has been issued and the employer has responded.
5. In a workplace case (eg where employees are not getting on) managers will want to see if they can resolve the situation by normal management procedures before suggesting mediation to them. However, it is best not to wait too long: it is not uncommon for a mediator to find that employees have already been through a grievance procedure, had a “mediation” with a manager, are on medication for anxiety or depression and have been off sick for several months. Needless to say, by this stage people can be very sceptical and cynical about any efforts to resolve the situation.
6. Whilst the general rule is “the earlier, the better”, mediation can take place at any stage of a conflict and it is never too late to mediate. Where court proceedings have been issued, mediation can even take place after the trial and while waiting for judgment or even pending an appeal against the judgment!
If you have a situation where you wonder whether mediation might be helpful, please contact me, Roger Gilbert on 07903 462 015 or Trish Groves on 07548 653 392 for a free, no obligation chat. Alternatively, email us at firstname.lastname@example.org. We offer a range of mediation services as well as team or individual coaching.