Knowledge Peers

The Challenge

I was introduced to a small company which had got itself into difficulties with one of its staff. The employee had brought a series of grievances, some of them seemingly trivial but also including serious allegations of race discrimination. It was clear both that the employee did not want to be there any longer and that the employer did not want him there either. The relationship had become dysfunctional, with a total and mutual lack of trust evident in all the parties’ dealings with each other. However, each was pretending on legal advice that it wanted the relationship to continue. This was consuming so much of the employer’s time and energy that it was beginning to form a real drag on the business.

The Approach Taken

My introduction to this issue was as external mediator and it was in that capacity that a settlement was ultimately procured which entailed the employee leaving on terms. But before that could happen the employer had had to take the vital steps of agreeing to the mediation process and of persuading the employee to participate in it. Too many employers see inviting their antagonised employee to participate in mediation as a sign of guilt or weakness, but they then risk being forced into increasingly unrealistic stances by legal advice aimed at preserving their position should the employee take tribunal proceedings.

My costs as mediator were being borne entirely by the employer, instead of the usual 50:50 split. This may seem unfair but where the employee is unable or unwilling to pay, it is often worth the employer’s while paying both halves just to make sure that mediation goes ahead. The employer was also open enough with me to admit early on that it wanted the employee gone. There is no point in seeking to ‘play’ the mediator or continuing to reiterate an artificial stance designed to limit the employee’s leverage – it makes getting a deal done far harder. The duty of confidentiality owed by the mediator offers a party the comfort of knowing that openness of that sort will not be disclosed to the other without consent and so there is no risk of its openness inadvertently prejudicing its negotiating position.

The employer was angry that it had faced what it saw as malicious grievances and baseless allegations of discrimination. It did not want to pay the employee to leave, but it was still able to make the mental jumps necessary to make the best out of a mediation. Firstly it accepted that it had to look for a settlement it could just about live with and not insist on one which represented any form of vindication. Secondly it saw that this meant looking past issues of right and wrong, fairness and justice, and taking the whole affair very much as a commercial deal despite the high levels of emotion involved. Only on that basis was the company was able to bring itself to make a severance payment. This was on one view more than the employee deserved but at the same time less than the probable costs, both financial and non-financial, of continuing down the phoney war path advocated by both sets of advisers.