Today was a good day for mediation in the UK.

Today was not a good day for BA customers especially those with travel plans from Heathrow to a European destination next Friday. I am one of them.

Photo: A Bucklow

The Court of Appeal decision handed down today may have been a bit of a surprise for some and the appeal story may not yet be over as BA are considering an application to the Supreme Court. Rejecting the early ruling of the High Court on Monday, two Court of Appeal Judges decided that

it would be wrong to thwart the desire of staff to take strike action on the basis of a “technicality”.

A third judge, the Master of the Rolls, Lord Neuberger, agreed with BA.

However, the most important comment, which has been included in all the reports I have seen today was this:

Lord Judge, the Lord Chief Justice, stressed that the strike would have to be resolved by negotiation. He said: “Legal processes do not constitute mediation. On the contrary they often serve to inflame rather than mollify the feelings of those involved.”

Hear! Hear!

I am very encouraged by this and I sincerely hope that both sides will find the courage to close the gap so that BA can get on with rebuilding their business.

For a longer report published in the Independent Newspaper.

The new arrangements for disciplinary and grievance procedures have raised alarm bells for me not least as a result of the resurgence in the promotion of training teams of in-house mediators. Please don’t do it!
Why on earth not? I hear you cry. Here’s why…

1. You will need a variety of people to make up a team that might meet the needs of any and all disputes arising and that is a real challenge to build. It is a bigger challenge to maintain. When people leave the team, either because they leave the company or through promotion, it is unlikely they will be replaced immediately with another trained in-house mediator. Re-training has all kinds of hurdles not least getting enough people to make it worthwhile and allocating the funding. Soon, the resource becomes fragmented and the employees and managers lose confidence in the ability of the in-house team to deal promptly with issues arising. = disappointment
2. There are specific skills which require practice and attributes which require careful identification. A good deal of what is required to be an effective mediator can be trained but certainly not all. The classic choice for an in-house mediator is someone who already displays a “harmony seeking” style or disposition. They may be expected to deal with matters so that they do not become fully fledged disputes and that makes for pressure to stifle and curtail discussion about underlying causes. What you really need is someone who is very skilled in orchestrating frank and open dialogue and is confident enough to deal with the conflict that might engender. Someone who has the skills to make sure that can happen in a positive environment and who can guide the parties through it and out the other side. Without these skills and attributes, mediation can be seen as yet another “sticking plaster process”. = distrust of the process
3. It is rare for in-house mediators to have enough and regular practice or experienced support to maintain a level of skill to make them effective. If they fail, then that can reflect upon their overall role in the organisation. = resentment
4. It is rare for organisations to make the role of mediator the primary role for the individual. It is may be seen as a reward for past performance, an alternative to current (unsuccessful) performance or an opportunity for personal development. Therefore, there is an in-built conflict as mediation will always be secondary to their main job. That is neither helpful for them or for the people for whom they are acting as mediator. The possible measures for successful performance are incredibly difficult to establish. Reconciling those with the performance measures for the “day job” is even more complex. = risk
5. In-house mediators can be viewed as partial, with a conflict of interests and a vested interest in the outcome. This breaks the three core principals of why mediation works. The issue of confidentiality is also in question – at least in the minds of the parties. They know the culture of the orgnaisation and if they don’t believe in the autonomy of the in-house mediator then they will neither trust the process nor trust the mediator. All these are fundamental to the success of mediation. = long term distrust of a valuable business tool.

So what is the alternative?

• push the responsibility for dispute resolution to the top of the organisation. It works best when it is on the board room table;
• invest in training for senior managers on recognising the early signs of discontent and reward them for “grasping the nettle”;
• develop performance measures around conversation, consultation and change. For example, how many opportunities for “surgeries” has a manager created? How many meetings have been held where the agenda was designed by the workforce and not the manager?



“There is a real danger that people [employers] keep their heads down. There is a danger we can lock ourselves away in darkened rooms – when employees need us more than ever walking the floors.” Liane Hornsey, people organisations director at Google

• How many changes have been made to procedures and processes to remedy deficiencies and embed success?
• For every KPI on productivity, performance and output, can you agree a matching KPI for the manager or team leader on how many issues they have resolved which were presented by their team as being barriers to success? How about reporting on the pairs of KPI’s? This demonstrates shared responsibility.

On the occasion that a problem arises which is too sensitive or too complex to deal with internally then seek out an independent mediator who can bring fresh eyes, new perspective, impartiality and experience to the issues and who will also gain the respect and trust of those involved. If the matter is serious and complex enough to be still an issue then you will need experience and that will be a combination of

• mediation experience
• commercial experience
• sector experience

Why do it this way?

Because it is one of the most cost effective ways of resolving disputes and looking after your internal reputation at the same time. At the moment, internal reputation should be high up on the agenda of every company and organisation especially if redundancy is in the air.