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Mediation, conciliation and arbitration

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Mediation, conciliation and arbitration

There are a number of ways to sort out problems in the workplace without going to court or an Employment Tribunal, including mediation, conciliation and arbitration.

Sorting out work problems with specialist help

It's always worth trying to deal with disputes at work without resorting to legal action. Sometimes the best way is by using outside help.

Both sides of a dispute have to agree to use mediation, conciliation or arbitration. Sometimes this agreement will be included in your employment contract. You usually can't force your employer to agree to it, although it will often be better for them as well as you. There will often be a charge for using the services of a mediator or arbitrator.

Mediation, conciliation and arbitration are usually used by individuals needing to resolve a problem. They can also be used in collective situations, where there is a dispute between a group of workers, (usually represented by a trade union or employee representative), and their employer.

Mediation

In mediation, an impartial expert talks to both sides separately, as well as together if needed and helps come up with a solution that both can accept. It's usually quicker than taking legal action, often lasting less than one day and almost always less expensive and stressful. Both sides must agree to mediation.

The mediator doesn't just tell you what you should do, but advises on issues, asking questions that help people look at their own behaviour.

Mediation is best used early in a dispute. It's sometimes used as part of a grievance procedure.

Some companies have their own trained mediators and there are organisations that offer professional mediation services, such as the Advisory, Conciliation and Arbitration Service (Acas). The Acas service is used mainly to:

  • Help sort out disagreements between workers, like personality clashes
  • Help sort out problems between you and your employer
  • Hear appeals against disciplinary action, often in smaller companies
If you go ahead with mediation, it's best to be prepared by writing down the problem, the history and possible outcomes that you would find acceptable.

Agreements reached through mediation aren't legally binding, unless this is agreed in advance.

Conciliation

Conciliation is similar to mediation but is normally used when there is a particular legal dispute, rather than more general problems. A conciliator will normally be there to encourage the two sides to come to an agreement between themselves, whereas a mediator will often suggest their own solution.

In April 2014, Acas introduced a scheme called 'Early Conciliation'. This is a free service designed to resolve workplace disputes. If you have a problem with your employer that you can't resolve and are considering lodging a claim at an Employment Tribunal, Acas must first offer this service.

For more details see the section 'Before making a claim' under Employment Tribunals. You can also see the Acas website for more information.

The decision of an employment tribunal is not affected by your decision to try conciliation. If you decide not to go through conciliation, or if you try it, but it doesn't work, any potential claims you have are unaffected and you can take them to an employment tribunal.

A trained conciliator:

  • Talks through the issues with each side
  • Explains the legal issues involved
  • Looks at opportunities for settling the case
  • Helps you and your employer agree a legally binding agreement
The conciliator is impartial and independent, (so they are not on anyone's side, and have nothing to gain), and your discussions are confidential. They'll try to help you make your thoughts clear, and look at ideas you may have for sorting out the problem.

The benefits are that:

  • You'll get a better understanding of the issues
  • You might sort the problem out without a tribunal hearing
  • You could reach a solution on your own terms
  • A settlement can include things that won't be covered in a tribunal judgement (like getting a good reference)
Settlements reached through Acas conciliation are legally binding. You'll sign an agreement called a COT 3. Once you've reached an agreement, there's no going back on it. If either you or your employer breaks the agreement, you could be sued by the innocent party.

Settlement agreements

Another form of legally binding settlement is a 'settlement agreement' (previously called a 'compromise agreement'). These agreements are used where Acas isn't involved. There are strict requirements for a settlement agreement to be binding – putting it down in writing and signing it isn't enough. The settlement agreement must relate to your claim and you must have taken specialist advice from an independent legal adviser. The adviser must also have insurance or professional indemnity cover for any claim which you might have against them for their employment advice. The agreement must name the adviser but doesn't have to be signed by them.

Conciliation agreements and settlement agreements are legally binding. In both cases, once you've reached agreement, you'll no longer be able to pursue your employment tribunal claim.

It is always up to you whether you accept a settlement. Your employer may sometimes put a lot of pressure on you to accept (for example, they may say that you'll get nothing if you don't accept an offer there and then), but you should remember that you always have the choice. Settling is usually easier than going to a tribunal, but the amount you get may be less, and your employer might attach conditions (for example, a confidentiality agreement). If you're not sure whether to accept an offer, consider getting specialist advice.

In 2013, the government changed the name of compromise agreements to 'settlement agreements'.

The government also made it easier for employers to have pre-termination negotiations with their employees.

Pre-termination negotiations are confidential talks held with employees with a view to ending their employment on agreed terms. In July 2013, the government brought in laws to ensure that these discussions would benefit from increased confidentiality. This means that an employee cannot use pre-termination negotiations as evidence in an unfair dismissal claim.

This will apply unless either party has shown 'improper behaviour', e.g. harassment, intimidation, assault, victimisation, discrimination or putting undue pressure on a party (such as allowing insufficient time to consider the offer or threatening dismissal if the offer is rejected). See Acas's code of practice (PDF) for more information.

However, pre-termination negotiations can be used as evidence in the following claims:

Arbitration

Arbitration uses an impartial outsider (an arbitrator) to decide between two claims. The arbitrator acts like a judge, making a firm decision on a case. The two sides of the dispute will normally agree in advance whether the arbitrator's decision will be legally binding (so they have to go along with the decision) or not (so they can still decide to go to a court or tribunal).

Arbitration is often used in collective disputes. For example, if a trade union is considering strike action because they simply can't agree with an employer, then they may agree to appoint an independent arbitrator (usually from Acas) to look at the situation and make a reasoned and independent decision.

Arbitration can also be used to settle individual disputes. If you and your employer agree to go to an arbitrator, then it may be a quick way of resolving a problem without the stress and expense of an employment tribunal.

Both sides have to agree to go to arbitration. It's faster and less formal than an employment tribunal. Acas, and some commercial organisations, offer the services of specialist arbitrators.

The Acas arbitration scheme

Acas run a free arbitration scheme that can decide cases of unfair dismissal and disputes about flexible working, where there are no complex legal issues.

Both sides must agree to arbitration. You'll have to sign an agreement, having taken advice from Acas or an independent adviser like a lawyer. Once you've signed, your claim can't go to an employment tribunal.

You can pull out of the process after you've signed the agreement, but you can't then go to an employment tribunal. Your employer can't pull out unless you agree. You and your employer can still reach an agreement before the arbitration hearing.

Where to get help

The Advisory, Conciliation and Arbitration Service (Acas) offers free, confidential and impartial advice on all employment rights issues.