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Mediation, conciliation and arbitration

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Mediation, conciliation and arbitration

There are several ways to sort out problems in the workplace without going to court or an Industrial 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 organisations like The Labour Relations Agency (LRA) offer professional mediation services. The LRA 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.

Conciliation through LRA is free of charge and is automatically offered if you make an Industrial Tribunal claim. If your claim might go to an Industrial Tribunal, you can also ask for conciliation before you put in a claim. Both you and your employer have to agree to conciliation before it can happen.

The decision of an Industrial Tribunal is not affected by your decision to try conciliation. So if you decide not to go through conciliation, or if you try it but it doesn't work, this does not make any difference.

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 LRA conciliation are legally binding. You'll sign a formal agreement and once you've agreed it – even verbally – there's no going back on it. If you or your employer break the agreement, they could sue you, or you could sue them.

Compromise agreements

Another form of legally binding settlement is a 'compromise agreement'. These agreements are used where LRA isn't involved. There are strict requirements on a compromise agreement – putting it down in writing and signing it isn't enough.

The compromise 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 compromise agreements are legally binding. In both cases, once you've reached agreement, you'll no longer be able to pursue your 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.

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 get an independent arbitrator in (usually from LRA) to look at the situation and make a reasoned 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 Industrial Tribunal.

Both sides have to agree to go to arbitration. It's faster and less formal than an Industrial Tribunal. The LRA, and some commercial organisations, offer the services of specialist arbitrators.

The LRA arbitration scheme

LRA 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 LRA or an independent adviser like a lawyer. Once you've signed, your claim can't go to an Industrial Tribunal.

You can pull out of the process after you've signed the agreement, but you can't then go to an Industrial 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 Labour Relations Agency (LRA) offers free, confidential and impartial advice on all employment rights issues. You can call the LRA helpline on 028 9032 1442 from 9.00 am to 5.00 pm Monday to Friday.