UK: Are You Up To The Challenge Of The New ACAS Code?

Last Updated: 27 November 2009
Article by Graham Massie

There are many laudable aspects to the new Code - it takes us back to working with principled guidelines rather than rigid process rules; and it encourages, through the use of mediation, the restoration of common sense in trying to find a resolution to workplace grievances.

But will the Code alone really make that much difference?  We can welcome its new flexibility and pragmatic approach, but at the same time we should recognise that for many organisations workplace conflict reflects ingrained cultural habits rather than a simple absence of due process.  The real payback therefore will be achieved – for employers and employees alike – only if the application of the Code moves organisations away from grievance-orientated cultures and closer towards the effective dialogue approaches (across all areas of activity) that established mediation usage can engender.

We live in an age where there will always be workplace grievances, most of which get resolved by successful conciliation, albeit usually informally and not always satisfactorily.  Undoubtedly the Code will improve this further as adopting its approach into procedures should not be a problem for many organisations and their HR professionals, not least because employees' representatives know their position will be protected if they follow these procedures. 

Mediation is also now familiar to many - the CIPD Workplace Mediation Survey in 2008 found that almost half of all organisations use mediation more often now than they did three years ago (with a fifth having come on board during this period).  There is however some way to go in that the research also found that, whilst many organisations incorporate mediation into their procedures, very few include it within their standard employment contracts even though this is an area has the greatest potential for positive impact.

The most important challenge remains - organisations need to create a cultural shift so that it becomes more natural to mediate than to fight a grievance. Crucially this aspect of organisational culture is what will affect the number of grievances being satisfactorily resolved, and not the Code in isolation. Plainly, cultural change and its effects will not be felt immediately.  We can, however, expect that, over time, the more progressive organisations will come to appreciate that mediation is a cultural asset, that can successfully both restore and end difficult relationships, and they will therefore use it to build on what is already working within their existing policies.

The keys to gaining the benefits of mediation and successfully embedding it within a culture are firstly to understand how to customise the process and secondly to use it and become used to it.  Mediation fits well into grievance procedures because it is an adaptable process, but it is important therefore not to impose too tight a structure onto its use as this might restrict scope for flexibility and creative solutions.

Using mediation successfully is also about understanding the choices available in making it fit the needs of each and every dispute.  On a macro-level, do you know if you want to train mediators internally to help with your disputes (we know that E.On and GE both do this successfully at an international level) or would it be more effective to draft in external expertise (we work with a major consultancy and a high street bank to do exactly this)? Or maybe use a combination of the two in a tiered process?

If you need external help, what approach should you take?  The ACAS CIPD Mediation: an Employer's Guide sets the scene:  "If the decision is to use an external mediator then there are a range of options.  As well as public and not-for-profit sector providers such as ACAS and the Centre for Effective Dispute Resolution (CEDR), there are a growing number of private sector mediation providers offering workplace mediators and training for in-house mediators."

A plethora of new vendors have indeed sprung up in advance of the Code's arrival; and the Guide offers a number of useful pointers as to how employers might distinguish between the good, the bad and the indifferent.

On a micro-level, for every dispute you consider, there is also the question of what sort of mediator you want for that dispute.  Do you want someone who understands the industry in which your employees work, knows the language they speak and the processes they use, or is the most important factor that they are expert in employment law, or their ability to be tough, or compassionate?  You might want a mediator with all of these skills, but you may well need to prioritise the most important factors in each case and have an appropriate pool to select from.  Again, it makes sense for employers to have their plans in place rather than make rushed, and possibly rash, decisions when a dispute arises.

The playing field may not have changed when it comes to dealing with grievances but the opportunity to capitalise on the advantages of a cultural introduction of mediation is the challenge which the ultimate winners will have addressed.

For more information see: http://www.cedr.com/training/programmes/Workplace_Mediation_Skills_Training

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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