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Abstract
The familiar litany of complaints about the costs, delays and excessive formality associated with the processing of workplace disputes through the employment tribunal system has led to experimentation with alternative forms of employment dispute resolution, in particular, mediation. While any attempt to provide additional options for would-be-litigants is, of course, laudable, the dangers inherent in classifying disputes for different kinds of treatment must also be explored in depth. If mediation merely adds another level of proceedings to an already complex process, few economies may be reaped. This article seeks to advance understanding about the mediation process and the prevalent mediation model in the context of workplace disputing. Although it highlights the successful incorporation of mediation into the legal framework of countries such as New Zealand, it nevertheless urges caution on the part of UK policy makers who may be seduced into utilising mediation to facilitate settlement for predominantly tactical reasons.
... However, efficiency criteria have not been without controversy over the disadvantages of power imbalance between disputants. As Dolder (2004) points out, workplace mediation assumes that the parties are equal and capable of participating in the production of individual solutions. However, often a disparity of power is observed between the parties, which not simply resides in the hierarchical relationship between them but in the degree to which they are able to articulate their views, their level of formal education, or extraversion (Bollen & Euwema, 2013;Medina et al., 2008). ...
... The pertinent question in workplace mediation therefore is: are disputants sufficiently capable of negotiating with each other as equals, or will this merely reinforce the existing power imbalance? (Bollen & Euwema, 2013Dolder, 2004;Sanders, 2009). ...
... Despite the increased promotion and implementation of mediation, as a primary dispute resolution process, there is a general agreement in the literature and systematic reviews on the topic on the need for a closer link of mediation practice with evidence-based research (Bennett, 2014;Bollen & Euwema, 2013Coleman et al., 2016;Euwema et al., 2019;Wall & Dune, 2012). As Dolder (2004) states: "Somewhat surprisingly, the lack of research on the realities of mediation practice has not deterred policy makers from facilitating the movement away from tribunal-based disputes resolution" (p. 321). ...
... Arabuluculuğun amaçlarından birisi de bir dönüşüm sağlanmasıdır. Yani hem uyuşmazlığın tarafları arasındaki ilişkinin arabuluculuk sürecinde yeni bir şekle bürünmesi, hem de sosyal dönüşümdür (Dolder, 2004) Sorunları konuşup anlaşarak çözme kültürünün yeterince oluşmadığı yahut gelişmediği toplumlarda iletişimin geliştirilmesi için uygun bir ortamın oluşturulması ve bireylerin birbirleriyle iletişim kurması için bir mekanizmanın geliştirilmesi son derece önemlidir. Arabuluculuk yöntemi, bu amaca en uygun ve en ideal yöntemlerden birisidir. ...
İşyerlerinde, çalışanlar arasında anlaşmazlıklar kaçınılmazdır. Çatışmalar, üretkenliği kesintiye uğratabilen ve huzursuz bir çalışma ortamı oluşturabilen durumlardır. İş ilişkisi çerçevesinde çıkan anlaşmazlıklarda, mahkeme yerine, öncesinde yapıcı ve barışçıl çözüm yöntemlerine başvurulması elzemdir. Arabuluculuk yöntemi bu noktada devreye girmektedir. Arabuluculuk, tarafsız bir arabulucunun, ihtilaflı tarafların birbirlerini daha iyi anlamaları ve gelecekte çalışma ilişkisini geliştirecek karşılıklı olarak kabul edilebilir çözümler bulmaları için aralarındaki iletişimi kolaylaştırdığı yapılandırılmış bir süreçtir. İşyeri çatışmalarının temel nedenleri yanlış iletişim ve sorumlulukların net olmaması gibi şikâyetlerden kaynaklanır. İşyeri arabuluculuğunu uygulamak, sadece anlık çatışmaları çözmekle kalmaz, aynı zamanda organizasyon ekosistemini geliştirir. Arabuluculuk açık iletişim, saygı ve iş birliği kültürünü teşvik ederek pozitif bir çalışma ortamı oluşturur, çalışanlar, ekipler ve yönetim arasındaki ilişkileri güçlendirir ve güven inşa eder. Arabuluculuk, çatışmaları erken bir şekilde ele alarak, sorunların büyük ve yasal anlaşmazlıklara dönüşmesini önler. Neticede işyeri arabuluculuğu, yapıcı uyuşmazlık çözümü kültürünü teşvik ederek, pozitif ilişkiler geliştirerek ve organizasyon performansını artırarak organizasyon ekosistemini geliştirir.
... Moreover, the ACAS Code of Practice on Disciplinary and Grievance Procedures further supports the use of mediation in employment disputes. The Code outlines the role and responsibilities of mediators, emphasizing the importance of their impartiality, independence, and the necessary skills and experience to facilitate the resolution of the dispute (Dolder, 2004). This guidance helps to ensure the consistent and effective application of mediation principles in the employment context. ...
This study aims to examine the regulatory frameworks for mediators in employment dispute resolution in Indonesia and the United Kingdom. The research method involves a comparative analysis of the two countries' approaches to regulating the mediation process, mediator qualifications, and the enforceability of mediated agreements. The findings of the study indicate that a robust regulatory environment is crucial in ensuring the credibility and reliability of the mediation process, which in turn increases the willingness of parties to engage in mediation and improves the overall outcomes of employment disputes. The research identifies key considerations for the development of a future regulatory framework, including the need to strike a balance between confidentiality and transparency, strengthen the enforceability of mediated agreements, and harmonize the standards for mediator training, accreditation, and ethical guidelines. The research results suggest that the implementation of a regulated system for case reporting, the development of specialized tribunals or procedures for efficient enforcement of mediated agreements, and the establishment of comprehensive national standards for mediator qualifications and continuous professional development would contribute to the overall effectiveness of mediation as a dispute resolution mechanism in both developed and developing country contexts.
... The choice for the word "alternative" is many times contested with the claim that these mechanisms should not be alternative, but complementary to judicial courts. For the evaluation of its role on access to justice we use a combination of literature about similar realities that received different names: "informal justice" (Abel, 1982;Mathews, 1988;Van Krieken, 2001;Wojkowska, 2006), "popular justice" (Merry, 1992(Merry, , 2003Merry and Milner, 1993) and "proximity justice" (Deu, 2006;Bastard and Guibentif, 2007;Wyvekens, 2008). More important than the choice of a name to frame the discussion is to keep in mind that extrajudicial justice includes a great diversity and the analysis must be context sensitive. ...
This comparative report is the 5th deliverable of ETHOS WP6 “Struggles for justice”. D6.1. established the theoretical framework; D6.2. dealt with official discourses and non-institutional resistance in the context of the 2008 financial crisis; D6.3. and D6.4 approached different institutional mechanisms to ensure economic justice, citizens’ participation and the continuity of the European Social Model (ESM) and the present deliverable aims to understand if alternative dispute resolution (ADR) mechanisms are functional instruments to improve access to labour justice.
In a context of a high unemployment rate, the dismantling of the welfare state and attacks on collective bargaining – as addressed in the previous deliverables - this report questions whether national individual ADR mechanisms are useful tools for claiming labour rights and accessing labour justice. Six national teams were asked to write a report based on a two phases’ research methodology: a) desk research aiming to describe the main ADR mechanisms available; b) empirical work that involved interviews to key informants in order to produce a critical analysis of ADR mechanisms concerning access to justice. The present comparative report relies partially on national reports and unfolds in three parts. The first examines the rise of ADR in Western societies and the lively discussion around it; the second focuses on labour justice and ADR in Europe; and the third involves a descriptive and a critical analysis of labour ADR in the six countries on a national level.
In order to assess the effectiveness of ADR in claiming labour rights and accessing labour justice, we have identified five dimensions of the variable of proximity justice: geography, costs, time, culture and visibility. Geography appears to be a less relevant variable in order to compare ADR and courts’ accessibility. Contrastingly, empirical data show that costs and time are two dimensions of proximity in which ADRs tend to present clear cross-country advantages when compared to courts. Cultural or human proximity is an important proximity dimension in this report. The creation and development of dispute resolution forums that use common sense language and familiar routines, being at the same time trusted by citizens, may reduce the distance between litigants and justice institutions.
The European landscape of labour justice also reveals a less optimistic side of labour ADR reality. The national realities illustrate that ADRs need more visibility and publicity so that citizens acknowledge them as an option to litigate. Solving this issue by making them compulsory is a contested decision as the volunteer character is a crucial feature, at least for mediation. Other ADR risks underlined in this report include the following: the creation of a dual justice system, with courts serving first class citizens, and ADR serving second class citizens that cannot afford or understand courts procedures; the inexistence of mechanisms to balance power relations and the reproduction of societies’ power asymmetries. Concerning labour ADRs in particular, two main concerns are raised: a) the possibility of reproducing the power imbalance between the employer and the employee; and b) the weakening of collective struggles as a result of an investment on individual litigation.
Despite remaining challenges, this report illustrates that ADR can contribute to the promotion of access to justice, making it possible to remedy situations in which individual rights are threatened. A process in which citizens think of a solution to their conflicts and speak for themselves, potentially promotes legal empowerment.
In light of the foregoing, this deliverable has identified policy recommendations that emerge from the study of labour ADR mechanisms in Europe. Below we shortly present some of them.
• Countries must invest on promoting the visibility of ADR. Information must not be only available online or on the phone to citizens who search for it. There must be campaigns.
• Organisations must be informed about the possibility of including clauses, incorporating references to mediation and conciliation, in their key policies and employment documentation, including employment contracts.
• Parties need to be clearly informed in detail about the substantive ADR procedures before accepting its use.
• In labour disputes in particular, it is crucial that workers are well informed about their labour rights. Legal information must be available before the beginning of a mediation, conciliation or arbitration.
• Strong ethical ADR codes, continuous adequate training for ADR professionals and regular evaluation of these mechanisms performance must be part of a global strategy of investment in this field.
• In countries where individual alternative labour dispute settlement is lacking, it would be necessary either to establish out-of-court dispute resolution bodies specialised on individual labour law cases or to expand the competence of existing collective labour dispute agencies to cover individual cases.
• Decisions making the ADR in individual labour conflicts obligatory should be revisited
• ADR must not be viewed as a second-class justice, but citizens’ own choice when they recognize there are a better option. In case of being mandatory there must be, as in a first instance court, the possibility of appeal.
• The investment of labour ADR must be complementary to the investment in other forms of ensuring labour justice: social dialogue structures, labour rights and other forms of social protection that define Europe as a common political project based on people and not simply legal engineering compatible with a neoliberal world based on markets.
... See Ridley-Duff, 'Towards mediation ', op. cit., 109-110;Cheryl Dolder (2004), 'The contribution of mediation to workplace justice', Industrial Law Journal 33 (4) Given ADR's characterisation as a substitute for adjudication, the latter will serve as a baseline for the evaluation of the former. 28 In terms of deliberative justice, ADR has been criticised for exacerbating informational inequalities between workers and employers. ...
In the United Kingdom, workers and employers are increasingly being encouraged to use alternative dispute resolution (ADR) mechanisms rather than Employment Tribunals (ETs) to resolve conflicts. Like adjudication, ADR involves the intervention of an independent third party in the dispute, but its aim is to help them reach a settlement rather than to apply legal rules and sanctions. It is generally praised for its comparative affordability, speediness and informality. As part of ETHOS WP6 on struggles for justice, this report unpacks the implications of the shift from judicial to extra-judicial dispute resolution for workers’ capacity to contest power inequalities and exercise their rights. It focuses on the activities of the Advisory, Conciliation and Arbitration Service (Acas), a large state-sponsored agency which wields unparalleled influence on the overall landscape of employment-related ADR in Great Britain.
The report moves from theoretical reflections on the relationship between ADR and justice to the description of Acas policy, the mapping of social partners’ perceptions of ADR and the experience of workers who resort to it. Perceptions are assessed through four semi-structured interviews, two of them with union representatives and the other two with employer representatives. The description of worker experiences draws on a large-scale quantitative study conducted with Acas users in 2015 and six in-depth ethnographies with precarious workers who interacted with Acas in the course of an employment dispute. The ethnographies took place between 2011 and 2014 as part of an ERC-funded project examining how the law is mobilised by workers who cannot easily afford to pay for legal advice.
Acas’ main intervention in employment ADR takes place through a conciliation service which intervenes rapidly in ET claims, entails no direct financial cost for parties and seems to be positively evaluated by most of its users as well as (other) employers. However, unions have been more critical of its capacity to deliver fair outcomes, and both legal theory and available data suggest important pitfalls in terms of procedural and substantive justice. When it does not conclude in a settlement, conciliation may lengthen the dispute resolution process in a way that imposes disproportionate burdens on workers. Whatever its outcomes, it also offers employers an opportunity to shape workers’ expectations through the authoritative voice of conciliators, whose impartial position may be confused with that of a judge despite the fact that they have no mandate to interpret legal rights and standards. The ambiguity is compounded by Acas’ multiple roles, including a helpline on employment rights which many employees contact prior to conciliation. High rates of satisfaction with Acas services may thus conceal that conciliation can result in workers accepting unfair settlements in which their legal rights are compromised. Also of concern is the prevalence of confidentiality agreements which can make further claims by other employees difficult to pursue, and which keep employer abuses of rights out of the public domain. The tension between ADR and justice is signalled in Acas’ own Codes of Practice of mediation, which list the types of cases where it may not be suitable. While these cases seem to overlap with those likely to give rise to a Tribunal claim, the conciliation system puts the onus on claimants to decide whether to litigate or not. In this context, it seemingly encourages them to go through a process which leaves them in a weaker position than judicial proceedings. Since worker vulnerability partly reflects the overall inequality of bargaining power created by a long-standing decline in union representation, collective ADR (designed to prevent strikes rather than court cases) may be more likely to deliver fair outcomes than individualised interventions.
... See Ridley-Duff, 'Towards mediation', op. cit., 109-110;Cheryl Dolder (2004), 'The contribution of mediation to workplace justice', Industrial Law Journal 33 (4) Given ADR's characterisation as a substitute for adjudication, the latter will serve as a baseline for the evaluation of the former. 28 In terms of deliberative justice, ADR has been criticised for exacerbating informational inequalities between workers and employers. ...
Successive reforms of the Employment Tribunal System, based upon the interlinked assumptions that there are too many claims and that it is too easy for people with nothing to lose to lodge deliberately vexatious claims in the hope of a large payout, have made it progressively more difficult to bring claims against employers. This article challenges these persistent, though unsubstantiated assumptions, used to justify weakening employment rights enforcement and further deregulate the labour market. It draws upon the experiences of 158 clients of Citizens’ Advice Bureaux, who were tracked over the course of their disputes, as they sought to resolve work-related grievances. Among this group, it can be argued that rather than too many, too few claims go forward, discouraged by the real and imagined costs of making a claim. Financial compensation is usually the only (less than satisfactory) remedy offered.
... 28 Aim of our survey ADR has many potential benefits including a high settlement rate, 29 direct communication between the parties in dispute, less formality, tailored processes, a narrowing of disputed issues, confidentiality, 30 increased privacy, reduced costs, 31 and a wider range of (potential) remedies including creative solutions to what are often highly personalised problems. 32 Rundle identifies the core values of mediation as 'non-adversarial' ones such as responsiveness, cooperation, empowerment and recognition. 33 She also acknowledges that while many mediators actively promote these values, the extent to which the process reflects non-adversarial ideals depends significantly on the willingness and ability of the parties (and their lawyers) to engage in a way that promotes them. ...
This article provides an overview of how and where alternative dispute resolution (ADR) can be used on the journey from the point of workplace bullying and harassment (workplace abuse) to the resolution or termination of bullying complaints. We look at the ways in which complaints of bullying are silenced by ADR. This silencing may be a positive silencing (as possibly reflected by the successful resolution of the controversy through ADR) or it may be a negative silencing where ADR may act as a formal gag on the parties. While ADR may have many positive benefits and outcomes, it may also frustrate targets’ feelings of a just outcome, act as a blindfold with respect to precedent-setting for future cases, and create a barrier to more legal or other action by targets in search of further remedy.
... 28 Aim of our survey ADR has many potential benefits including a high settlement rate, 29 direct communication between the parties in dispute, less formality, tailored processes, a narrowing of disputed issues, confidentiality, 30 increased privacy, reduced costs, 31 and a wider range of (potential) remedies including creative solutions to what are often highly personalised problems. 32 Rundle identifies the core values of mediation as 'non-adversarial' ones such as responsiveness, cooperation, empowerment and recognition. 33 She also acknowledges that while many mediators actively promote these values, the extent to which the process reflects non-adversarial ideals depends significantly on the willingness and ability of the parties (and their lawyers) to engage in a way that promotes them. ...
We wondered how bullying targets who had participated in mediation or conciliation experienced both process and outcome. Specifically, we wanted to identify what variables, if any, affect perceptions of the efficacy of mediation or conciliation. We were also interested in whether settlement necessarily equates with feelings of satisfaction or justice. Accordingly, 10 employee respondents were recruited via a Survey Monkey email invitation to 20 people who had recently participated in one or more tribunal-facilitated conciliation and/or court-referred mediation. Their responses to the four open-ended questions were analysed thematically. The key themes identified were the perceived benefits (and detriments) of participating in ADR, perceptions of bias by the mediator/conciliator practitioner, the positive impact of being legally represented or having legal advice throughout the process, the positive impact of having a support person, feelings of being re-traumatised by the process, feelings of concern about the future repercussions of challenging employer behaviour (including adverse impacts on future employment), and feelings of justice (or lack of it) as a result of the outcome of the process.
... Subordinates in disputes, who had commonly complained that they had been bullied or treated unfairly, tended to have little faith that the process would substantially change the behaviour of their manager in the long term or hold them to account. In some respects, this reflects the concern, expressed in the literature that mediation can be used to avoid organisational action to deal with managerial mistreatment -instead bullying behaviours are recast as interpersonal disputes Dolder, 2004;Keashly & Nowell, 2011). At the same time, managers who had been accused of unfair treatment or bullying felt that mediation did not allow them to defend themselves against what they often felt were unwarranted accusations. ...
Existing research into workplace mediation in the UK has tended to focus on managerial perceptions. Consequently, there has been a unitarist emphasis on the business case for mediation, revolving around its alleged superior efficiency properties compared to conventional rights-based procedures. This paper develops the research agenda in two respects: first, it foregrounds the experiences of participants in mediation through 25 interviews with individuals drawn from a variety of contexts. Second, it extends the analysis beyond the efficiency of mediation to consider issues of voice and equity. In doing so it explores the role played by mediation within the negotiation and re-negotiation of workplace relations and also the way in which it shapes, and is shaped by, power and control. In the cases examined in the paper, mediation not only facilitated employee voice, but allowed subordinates to challenge the authority of supervisors and line managers. However, the influence of mediation on the balance of workplace power relations outside the mediation room was much more limited.
... Although a majority of respondents reported a willingness to entertain mediation in a dispute, they appeared slightly more reluctant to do so where the other party was senior to them. Issues of power have previously been discussed in relation to mediation (see for example Dolder, 2004;Coben, 2004 andGreen, 2006). Comments from survey respondents revealed some concern about the extent of support for managers involved in conflict and a perception that sometimes managers could be by-passed through mediation and other processes: ...
... The arbitrator's main duty is to settle the conflict by rendering a decision (Samsel 2007). Though arbitrators can design their own decision-making procedures, they currently reach their decisions in the same way that judges do, by fully hearing the case for each side and then issuing a complete, decisive, and binding solution on all parties (Edwards 1988;Dolder 2004;Jackson 2006). By the nature of their power and the structure of their forum, judges have the capacity and obligation to adjudicate decisively. ...
In the world, ADR (Alternative Dispute Resolution) methods are becoming increasingly popular because of a heavy caseload of tribunals/courts, and the resolution of individual employment disputes through ADR is part of this trend. However, there have always been concerns regarding the use of ADR for the resolution of employment disputes, particularly due to the potential power imbalance between the disputants. These concerns are mutual in the comparison countries of this research: the United Kingdom (UK), with its long and honourable history of ADR in individual employment disputes, and Turkey, which has recently started to employ ADR methods for these disputes. The concerns revolve around: (i) whether confidentiality acts as a ‘curtain’ that prevents stakeholders from assessing whether the procedure is justly managed or whether employees have been pressured to settle; (ii) whether representatives are accessible, whether there are providers of legal counsel for employment disputes, and whether the governments offer legal aid for individuals who cannot afford the cost of representation; (iii) the types of evidence that can be submitted in ADR processes and whether there is an enforcement mechanism in case of resistance to providing necessary documents for ADR meetings. Consequently, it must be highlighted that the same set of rules should not be applied to all kinds of disputes. Due to the potential power imbalances in employment disputes, necessary precautions must be taken to ensure access to justice. On this basis, this research illustrates how ADR regulations in Turkey and the UK should be adjusted to align with the unique structure of employment disputes.
There is a growing focus on resolving disputes through Alternative Dispute Resolution (ADR) methods in the world. This article explores ADR’s role in settling employment-related disputes. It highlights the distinctive characteristics (sui generis) of employment disputes with a particular focus on the power imbalance between parties and examines how ADR aligns with that of employment disputes. It considers the advantages and disadvantages of employing ADR within the realm of employment law by looking from the perspectives of both employers and employees. The article reveals that the advantages and disadvantages of ADR are interconnected. Furthermore, a single advantage might also come with a disadvantage. These drawbacks mainly rely on the potential power imbalance. However, most disputes inherently involve some degree of power imbalance, and because of mere power imbalance, completely disregarding ADR methods would not be reasonable unless parties are unable to seek their rights in courts or tribunals after attempting ADR.
This Book is originally a Ph.D. thesis in law with emphasis on Comparative Industrial Relations Law from Ahmad Ibrahim Faculty of Laws (AIKOL), International Islamic University Malaysia (IIUM). The project looks into comparative advantages of mediation in resolving industrial disputes in Liberia with the aim at deriving some enhancement precedents from the following Common Law Jurisdictions; the UK, New Zealand and Malaysia.
The research explores the substantive and procedural laws of mediation in Liberia, and
subsequently examines the effectiveness of those laws. It concludes that though
mediation as a tool of amicable methods of disputes resolution is encouraged by the
Liberian Labour jurisprudence. However, there are still lots of substantive and
procedural loopholes to be addressed by policies, laws, regulations and legislative
instruments. For instance, there is a need for an ADR legislation or at least, a Mediation
Act to regulate and standardise the practices of ADR. There is also a need to introduce
the Court-Annexed Mediation System (CAMS) as an auxiliary to reduce backlog cases
of labour disputes at the Court’s docket. Besides, the project further encourages
academics to consider researching in the area of ADR in general and industrial disputes resolution system in particular. It also recommends to the government to establish a labour market research institute in Liberia which could be responsible to look into challenges and prospects of the market. Finally, the research also asserts that Effective, Efficient and Expedient (EEE) Industrial Disputes Mediation System in Liberia would contribute to Industrial Peace and Expeditious Justice Delivery, Social Stability and Economic Growth with a shared prosperity in Liberia.
This article proposes a three-step model to help workplace mediators decide on the optimum strategy for mediating workplace disputes. The model uses a grid – the Workplace Mediation Strategy Grid – which is based on a modified version of a grid Professor Leonard Riskin developed for categorising mediation orientations. The model asks the mediator to first consider the nature of the workplace dispute based on three facets of the dispute. This guides the mediator to plot a position on the Grid which represents two fundamental aspects of strategy for mediating that dispute: (1) how broadly the problem should be defined by the mediator and (2) the style of mediation that the mediator should use. The mediator implements this strategy improving the likelihood of a fair and positive outcome for the disputing parties.
Frank Sander’s speech at the Pound Conference in the United States
in 1976 is considered as the beginning of the ADR. When it comes to
1990s, ADR started to be used in many areas of the law, and employment
dispute became one of the common areas of use. England has always been
a part of this trend during this period. In this context, a compulsory ADR
mechanism was adopted in 2002 to resolve employment disputes to resolve
them the outside of the court, but this mechanism did not give the
desired benefit. Since 2008, the UK has been adopting a voluntary mediation
system and it offers judicial and non-judicial LRM to the benefit
of the parties. In contrast, Turkish Mediation Law in Turkey in 2012
has taken a step into the world of individual employment disputes and
then, after receiving positive results, compulsory mediation has been introduced
to resolve employment disputes.
Due to the increase in the caseload in litigation, both countries have
adopted systems that direct the parties to the ADR mechanism and that include
compulsion elements. But the intensity of the compulsion elements
in one country may not mean the same as the concept of ‘compulsory’ in
another country. In other words, a system is neither completely voluntary
nor completely compulsory; some elements within the laws may make the
system more voluntary or more compulsory. In order to determine the intensity
of the mandatoriness within these legal systems in, a scale called
“Continuum of Mandatoriness” by Quek has been introduced. In this paper,
it will initially be introduced this scale, and then Turkey’s and the England’s
position on this scale will be determined.
Quek’s scale has stipulated 5 different types containing the different
degrees of compulsion. The first level refers to totally discretionary ADR
system meaning that parties are entirely free to commence and to bring an
ADR proceeding to an end; the second level refers to a system that parties
are pre-required to assess whether ADR is an appropriate alternative to resolve
the dispute but without sanctions; the third level stipulates a system
pre-requesting disputants to consider the appropriateness of ADR system
but with a sanction; the fourth level refers to a mandatory ADR system with
provisions involving an opt-out system or exemptions; the fifth level means mandatory ADR system with no exemptions and cost sanctions for refusing
to participate in ADR meetings. On this basis, the higher-level compulsion,
the higher the Art 6 hurdle.
England has adopted two different judicial methods for the settlement
of employment disputes; for claims less than £25,000, the parties can go
to the Employment Tribunal, while claims over £25,000 must apply to the
Civil Court. These two courts contain separate procedural rules and separate
ADR mechanisms. Looking at the system in employment tribunals, it
forces the parties to obtain a document called an ‘early conciliation certificate’
before filing a lawsuit, and applications made without this document
are rejected. In order to obtain this certificate, parties must contact an ADR
Institution called ACAS, but they do not have to participate in settlement
negotiations. In other words, it is possible to get this certificate by just stating
that the parties do not want to participate in the conciliation meeting.
In the civil court system, if the judge or the other party of the case proposes
to go to mediation and this person rejects this offer without any reason,
the court has the authority to punish the rejecting party with the costs of a
trial. Turkey regulated mediation as a pre-condition to action and the system
punishes a party, who does not attend mediation meetings without any
reason, in following court proceedings with the costs of litigation, even if
the party wins the case. The Turkish system has a few exemptions to mandatory
mediation, namely; the claim of compensation for pecuniary and
non-pecuniary damages arising from occupational accidents or diseases.
Since English system forces the parties to receive certification, but it
is not tasked with the suitability of the conflict to ADR methods, its place
in the scale should be between the first and the second level. The ADR in
the general courts, on the other hand, should be placed at the third level, as
it sanctions the persons who do not participate in the mediation meetings
without a legitimate reason. Our compulsory mediation system should be
between the fourth and fifth level, though our Employment Courts Law includes
some exceptions, the party that does not participate in mediation
meetings without reason is punished with the cost of litigation.
The right of access to courts guaranteed by Art 6(1) ECHR is not certain
and may be subject to some restrictions, but these restrictions should
not violate the essence of the right. However, what is important here is
whether ADR is a compulsory condition for access to court violates Art
6 of the ECHR. The European Court of Human Rights (AIHM) applies
a proportionality test to such regulations and examines whether this law is
necessary and an appropriate regulation.
The caseload in England (400,000) and Turkey (569 000) is taken
into consideration, at least it can be said that they are unnecessary regulations.
In this context, in one of ECtHR judgments, it has been found that
trend regulation between member states might be sufficient to be regarded
as necessary. The 2008 mediation directives of the EU left mandatory mediation
to the discretion of member states, and as a result, countries such as
Poland and Slovakia use the directive rules to resolve individual labour cases.
On the other hand, the European Court of Justice has decided that mediation
can be regulated as a pre-condition to action if it does not cause excessive
delay in the court process, does not cause loss of rights due to the
statute of limitations and is not extremely expensive.
In light of the information above, I think that mandatory mediation is
in line with the ECHR and the ECtHR case law. However, two issues; there
is a potential to punish the party who refuses to participate in the mediation
meeting for no reason to be punished in the subsequent court process
(this is also valid for the employment cases outgoing to the general courts
in England) and the quality of the ADR agreement signed at the end of the
ADR proceedings, there is a potential to violate Article 6.
Primarily, ‘unreasonably refusing’ is a subjective term. It is a mystery
whether it is a valid reason to believe that he will definitely win in court, or
that mediation will fail. This uncertainty is also a factor that can prevent a
party that does not attend a mediation hearing for any reason from suing
for fear of possible court costs. In addition, the understanding of “restorative
justice” aims to make the conflict as if it never happened and to eliminate
the damages suffered, but here the parties contain the possibility of
being punished in a case where they are justified. In terms of employment cases in England general courts, it was stated that this subjectivity could
force the parties to agree to a mediation agreement with the fear of sanction,
which could potentially be a violation of Article 6.
Another issue is that mediation agreement are binding contracts in Turkey
and England (res judicata) and it is not possible to continue employment
litigation for these mediation agreements even in situations such as mistakes,
cheat, and undue influence. Nevertheless, the right of access to court is the
right of everyone involved in a dispute, not just those who cannot resolve
their dispute during the mediation or settlement process. This is the case for
the two countries and is open to criticism as it may violate article 6.
As a result, mandatory mediation will not cause a violation of the AIHS
6 (1) since the compulsory mediation system is unlikely to cause a significant
delay and since it is free of charge in case of failure and the court way is not
closed. As a matter of fact, the Turkish Constitutional Court has also decided
in this direction. However, since the uncertainties and subjectivity in the
procedural rules and since the mediation agreements signed at the end of the
ADR proceedings may be a factor that may prevent the parties of the employment
relationship from going to the employment litigation specific to these
persons. This situation may create a violation of Convention 6 (1).
Overall, Chaps. 5–10 presents the nuanced analysis of individual cases and overarching common themes across cases, exploring mediation and relationship changes in the process from the perspective of mediation parties. The results have identified three common superordinate themes and seven main themes. Chapter 11 offers the discussion and interpretation of the key components of each superordinate theme. The implication of these findings for mediation practice and future research are provided. Findings of the literature on mediation and psychology are brought together with the results of this study in order to support the interpretation and make insightful recommendations.
This chapter presents the nuanced analysis of Linda’s case. Linda is in her mid-20s and employed at a public organisation in England as a subordinate working in an outdoor occupation. She also fulfils the role of union representative. The analysis explicates Linda’s understandings and feelings of stress due to conflict as an ‘eruption’ which led to complete relationship breakdown with her friend and supervisor, Darren. Linda’s perceptions of mediation as a fear-provoking experience that requires great encouragement and support by the mediator are highlighted. A rich portrait of Linda’s subjective lived experience of mediation as a ‘way to grow’ leading to personality development is explored.
In order to establish the context of this study, this chapter explores the mediation literature regarding interpersonal conflict, including the possibility that conflict can trigger personal and relational improvement, and highlights mediation’s potentials in inducing such positive change. Under each section the chapter explores the current state of research on relational changes in mediation in different case groups and mediation models. Through these arguments, Chap. 2 demonstrates the need for interpretative qualitative studies on mediation, and on workplace mediation in particular, as the rationale for this study.
Given that much of the research about the use of workplace mediation in the UK has been published in the last 5 years, you may be forgiven for thinking that the idea of workplace mediation is a relative newcomer to debates about how conflict should be dealt with in the workplace. This conclusion, however, would be inaccurate. Arguments for the greater use of workplace mediation as a way of improving workplace relations by moving to more informal approaches and tackling the numbers of employees who seek resolution through formal systems have been present in policy debates for decades. Despite this, just 7 % of workplaces indicated that they have experience with workplace mediation (in the 12 months prior to the survey) (Van Wanrooy et al. 2013). This presents a confusing picture of the status of workplace mediation in the UK and it is to this confusion that this chapter seeks to speak.
During recent years, there has been a growing interest in the field of employment relations in the use of mediation as an important way to resolve disputes in the workplace. This interest reflects the changing nature of ‘the social contract’ between employer and employees which focuses more on individualised labor relations, or i-deals. This is in line with the shift from formal and confrontational dispute resolution to more ‘interest-based’ conflict management systems in organizations in which primary attention is paid to underlying interests, needs and wishes of parties instead of collective rules. In this discussion chapter, we address first the developments in the field of workplace mediation and its relation to the changing nature of employment relations. In doing so, we refer to social exchange theory. Second, in order to assess the effectiveness of mediation, we build further on the “geometry of workplace mediation’’ already introduced in the first chapter of this handbook. The geometry resulting from the combination of the 3 dimensions (regulations, roles and relations) as described by the 3R-model is well situated as a conflict management and resolution system for the promotion of efficiency, equity and voice standards, and provides a contingent approach to the design of optimal and effective workplace mediation systems depending on the specific society, industry and organization.
Mediation has found an entrance in the agenda of policy makers and dispute system designers for several reasons, including its claim to improve access to justice. Yet, there are still many questions regarding the type of conflicts that is really suited to be mediated, and how to design mediation systems capable of delivering the benefits claimed. In fact, the perfect recipe to design an effective and satisfactory mediation system has not been found yet. The challenge is big: how can mediation deliver fairness and justice? For a comprehensive response, we need insights and perspectives from multiple disciplines. Currently, Dispute System Design arises as a new research area that studies conflict from a variety of perspectives (psychology, sociology, law, economics, etc.).
How a manager addresses conflict can have a profound effect on the workplace. A manager can adopt a flexible model of constructive conflict resolution which incorporates the five components attitude, technique, process, attention to power, and attention to trust. Although attitude and attention to power and trust should remain stable components, technique and process may change depending on the particular situation. This chapter sets out scenarios that demonstrate factors which affect the techniques and process the manager uses in constructive conflict resolution, including whether the manager is a party to the conflict, the characteristics and needs of the parties, the characteristics of the conflict, and the objectives of the manager and the organization.
Workplace mediation is more than merely a potentially useful process for conflict resolution and disputes in the workplace. Reuben (2005) argues that the new world of work – characterized by a breakdown of hierarchies, de-siloing of functions, flexible job descriptions, and greater employee mobility requires adherence to principles of democratic governance. In this regard, effective and constructive internal dispute resolution systems are a vital consideration for any organization. Workplace mediation, which allows for a large measure of party autonomy and self-determination (Reuben, 2005), plays a critical role here by channeling inevitable tensions in the work environment into a constructive direction, supportive of broader organizational change.
Purpose
The purpose of this paper is to assess the views and experiences of mediators from different professional backgrounds practising in the construction industry. Previous research shows that the legal profession dominates construction mediation in both England and Wales.
Design/methodology/approach
The phenomenological approach was used to capture the lived experiences of the interviewees and gain insight into their views and practices. The data collection was by semi-structured interviews. The data was then analysed using software to establish themes.
Findings
The major difference in mediator practice discovered between the two groups is the use of the evaluative style by lawyer and facilitative style by non-lawyer mediators. Non-lawyer mediators strongly reported their criticisms of the evaluative style in mediation suggesting that it undermines the parties’ ability to self-determine their own dispute and reduces the level of satisfaction experienced by the parties in the process of mediation. Lawyer mediators supported the use of the evaluative style as an acceptable compromise on the parties’ self-determination and feelings of satisfaction in pursuit of achieving the goal of a settlement in mediation, which was significantly better than the escalation of stress and costs to the parties in the event that the dispute escalates to litigation. In addition, mandatory mediation, the role of advisors/advocates, governance and the future of mediation were explored.
Originality/value
The research is anticipated to be of particular benefit to parties considering referring a construction dispute to mediation.
There is growing evidence in the UK that organizations and individuals are increasingly turning to mediation as a means of conflict resolution in the workplace. Research suggests, in particular, that mediation can often help to resolve issues that would otherwise escalate into lengthy and costly disputes (Latreille 2011; Latreille et al. 2012; Saundry 2012). Studies also reveal that the use of mediation in an organization can have a positive impact on conflict handling abilities and also the overall employment relations climate (Bennett 2014; Saundry and Wibberley 2014). Furthermore, in the context of the individualization of the employment relationship and the erosion of representative structures (see Chap. 7), it has been argued that mediation offers a degree of equality for the employee that is largely absent in other dispute resolution processes (CIPD 2011; Latreille 2011; Bennett 2013).
In the workplace, employees are under contract to obey the rules of the organisation. Eruptions of conflict are often regarded as inconvenient aberrations in normal working relationships. Senior management may not deem conflict management a priority or they may have little time to spare for it and instead maintain a focus on performance indicators that do not embrace dealing with conflict (Acas 2014). As a fallback, in compensation for a shortage of conflict management skills within management, mediation at worst may transfer responsibility for conflict from organisational causes, such as working pressures, to the individual, thus ‘reinterpreting unfair treatment as an interpersonal issue’ (Acas 2014, p. 9). Dolder warns of the risk that mediators who drive through compromises between parties may become ‘dealmakers protected by a cloak of confidentiality’ (Dolder 2004, p. 329). This pattern of the misapplication of mediation in the workplace could lead to a colonisation of mediation by the organisation that translates a benign project into a merely instrumental one. Whilst it can bring some benefits to participants, it may be primarily deployed in pursuit of organisational efficiency. The lasting effect could be to cover over deeper-rooted organisational problems of poor management practice in the widest sense. The mediation role-play material below will lend practical evidence to this theoretical analysis of the organisational colonisation of mediation. It will show how the facilitative model of mediation is highly susceptible to becoming an instrumental function, in no small part because mediators may lack a clear awareness of the power they have to influence parties in the determination of outcomes.
There has been a growth of the use of mediation in the workplace in recent years, and it is the facilitative style used in the family and community sectors that has been adopted (Bennett 2012, p. 2). Mediation has been taken up more in the public and voluntary sectors than in the private. This is borne out anecdotally through meetings with mediators and at mediation conferences, where public sector personnel managers seem to predominate. This is not to say that some very large private corporations have not embraced mediation, as can be seen by viewing the websites of larger mediation service providers. This anecdotal evidence is supported by surveys conducted by the UK Chartered Institute of Personnel and Development (CIPD 2011, p. 12), which find a slow growth in workplace mediation with a skewing towards adoption in the public sector. However, whilst there is a visible and active workplace mediation industry that is, in particular, supported by public sector bodies, it operates at very modest levels in the general economy in percentage terms. As The Workplace Employment Relations Study: First Findings 2011 (a sampling exercise) found:These WERS findings led the authors to conjecture that this low take-up is due in part to ‘the fact that mediation may not be embedded in the culture of conflict handling’ (WERS 2011, p. 27).
Mediation as a method of dispute resolution is well known and practised worldwide, and this book provides the knowledge necessary for those actively involved in mediation work as well as for those who need to learn the process. Key features of this book include: In-depth discussion of both the existing and historical international case law on mediation including its history under the British Common law, European Civil law and Muslim Shari’ah law. Analysis of the differences between the various forms of mediation agreements with sample wording to add to or modify these forms as needed. In-depth discussion of the ethical requirements relating to mediation and mediators. Sample forms for use in commencing mediation. In-depth discussion of actual mediations, how they should be conducted, techniques to use and sample forms. General forms for use in complex international mediation, form agenda and mediation statements. Mediator disclosure forms, questionnaires for potential mediators and parties and comparison of mediation agreements and sample forms. Discussion of how to effectively use witnesses and the preparation and presentation of witness statements in mediation. International case studies with statements of claims and responses. This book will be essential reading for those involved in international commercial and construction mediation.
Purpose: This paper considers the desirability and practicality of a standard code of conduct for construction mediators in England and Wales, which would accommodate both facilitative and evaluative mediator orientation. Content: A critical analysis is made of construction mediator codes of conduct in England and Wales and compares these to codes from other common law countries, the EU Mediators' Code of Conduct and the International Mediation Institute. The uptake of construction mediation grew significantly in the English and Welsh jurisdiction with the introduction of court rules, which permit the award of costs against a successful party if they unreasonably refuse to mediate (Brooker and Laver, 2005a, b). Construction mediation is now dominated by a small group of experienced mediators from a legal background (Gould et al, 2009; 2010) and this predominance of lawyers is reported to be connected to a rise in evaluative mediator techniques (Brooker, 2007). In the USA, the growth of evaluative mediators led to a critical debate on mediator orientation and the call for standards of good practice, which reflect these differences (See for example; Riskin, 1996). The status of mediation is enhanced as the courts increase opportunities for mediating which has led to the development of a mediator profession concerned with standards of 'acceptable' or 'appropriate practice' (See for example in the US, Menkel-Meadows, 2009; In England and Wales Boon et al, 2007). In the English jurisdiction there is no 'overarching' set of standards in place but as mediation growth continues with 'court approval' (Clark and Mays, 1996; Roberts, 2002; Boon et Al, 2007; Dolder, 2004), the schism between mediator approaches has become both more apparent and critical to the ongoing debate for a nationally recognised standard of mediator practice. Conclusion: This paper considers whether the 'Codes of Conduct' currently in use are sufficiently well defined to ensure participants are informed about mediator style (evaluative or facilitative) thus enabling self-determination and concludes that a lack of clear guidelines may obscure informed consent.
This paper will examine the debate on mediation styles, which has implications for party choice and the development of professional standards for mediators. Using qualitative data from interviews with lawyers experienced in using mediation for construction disputes in the United Kingdom (UK), it draws an analogy with the practice of mediation in the construction industry in the United States (US). Firstly, this paper will review the debate on mediator styles evidenced in literature in the US and UK, and an examination will be made of available findings on mediator orientation, particularly as it relates to construction disputes. Secondly, an analysis will be made of qualitative data from interviews with solicitors and barristers who are experienced with using mediation for construction disputes in the UK. The findings suggest the process is recognised as a facilitated process where a neutral third party helps the parties to reach a settlement agreement. However, interviewees describe using or experiencing a mix of evaluative and facilitative techniques within mediation. The data supports the contention that mediation in the construction arena in the UK is following a similar experience to the US and become 'lawyer driven', with mediators utilising evaluative techniques which the legal profession are more at ease with. Further research is needed into construction mediators' style in order to evaluate the effectiveness of both facilitative and evaluative interventions. © 2006 RICS, The Bartlett School, UCL and the contributors First published.
In England mediation became a key part of the civil justice reform agenda after the Woolf Reforms of 1996, as disputants were deflected from litigation towards settlement outside the court system. The Civil Procedure Rules (CPR) give courts the power to ‘encourage’ mediation through judicial case management or use stronger measures by using costs to penalise parties who act unreasonably by refusing to use ADR or mediation. One of the effects of this institutionalisation is an emerging case law that defines how mediation is practiced as it is merges with the litigation process. When mediation first began to be used in England the parties either agreed to mediate by a contract before a dispute happened or decided to attempt the process as a way of resolving disagreements. Inevitably, some disputants either refused to abide by their contractual obligations or would not follow through with the settlement agreements reached through the process. This brought the authority of the law into a new area and the juridification process began.
This article is a response to several factors: the emergence of occupational stress as a main theme in a qualitative study involving parties to workplace mediation; the recognition that mediation, being underpinned by psychological stress models, can reduce occupational stress; and a lack of studies investigating mediation's potential to alleviate occupational stress. Linking mediation's main qualities to interactional and transactional models of stress, the article provides a new angle on mediation's dynamics. Findings are illustrated by extracts from interviews. Suggestions are made as to ways in which workplace mediation might be used more proactively in relation to stress.
The current Coalition government's reforms of Employment Tribunals (ETs) and statutory rights echo the articulated rationale and argument, the underpinning deregulation ideology and the content of reforms initiated by Conservative governments of the 1980s and 1990s. The changes, while generally adverse for workers, are not necessarily positive for employers and risk adding to, rather than alleviating, the regulatory ‘burden’. A declared emphasis on alternative dispute resolution and workplace dispute settlement distinguishes the current reform agenda, but the potential this offers is unlikely to be realised given the short-term policy focus on cost reduction, an emphasis on suppressing and deterring legal actions rather than on improving workplaces and the absence of such facilitating features as workplace representation and institutions, a continuing legacy of the 1979–1997 period.
There has been a growing interest in the field of employee relations in the use of mediation in seeking to resolve disputes in the workplace. Mediation is a model of dispute resolution, it is argued, that lends itself particularly well to situations where the parties have become entrenched in their positions. The study's timeliness is evident in the Government's recent strategic focus on workplace conflict, specifically its current initiative to pilot mediation networks within the small and medium enterprises sector. The research was carried out over a nine‐month period ending in March 2012. It is based on the views and experiences of 60 respondents from over 40 cross‐sectoral organisations in the North of England. Findings revealed that the main reasons for the disputes referred for mediation were relationship problems, poor communication and poorly perceived management style and practice. Significantly, differences in sector or occupation could also impact on whether cases went to mediation.
mediation;conflict resolution;workplace mediation;labor mediation;employment disputes;workplace conflict
In this article, we review the literature on workplace mediation. To organize the literature in a logical way, we have relied primarily on the model of Margaret Herrman and her colleagues and examine the important influence of culture and feedback loops on the practice of workplace mediation. Workplace mediation has become a frequent practice in the United States, Europe, much of Asia, and Australia. In the literature, we have found various descriptions of this practice as well as long lists of its assumed benefits, but empirical studies examining the effectiveness of workplace mediation have been few; a limited number of studies have investigated which conditions ensure the effectiveness of workplace mediation, and few studies have relied on observations. As such, workplace mediation represents an underdeveloped research area. In this article, we describe the findings from the existing literature and offer suggestions for future research.
Purpose
The purpose of this paper is to examine the codes of professional conduct observed by construction mediators in England and Wales with the aim of assessing whether they raise awareness about party self‐determination and inform users about variations in mediator approaches.
Design/methodology/approach
The research collated a list of construction mediation providers drawn from members of the Civil Mediation Council, professional bodies working in construction and other leading providers. A search was then made of mediation providers' web sites to find published codes of conduct.
Findings
A substantial number of providers do not emphasize party self‐determination or the steps taken to inform users about mediator approaches in their online codes. Some organisations provide online access to “Mediation Agreements” which determine how the process and mediator approach is selected but generally codes do not place a specific duty on mediators to ensure parties enter mediation with informed consent about their approach.
Research limitations/implications
Online searches may not have found specific mediator codes if organisations publish overarching professional codes of practice for members, if the documents labels do not identify them as a mediator code, or if web sites are not searchable. Further research should investigate how codes of conduct affect construction mediators' practice.
Practical implications
Codes of conduct from countries and international organisations provide exemplars of good practice. Mediation providers in England and Wales should consider revising mediator codes to give weight to the principle of party self‐determination and to articulate a duty that mediators inform users about their approach to ensure they obtain informed consent.
Originality/value
This is an original analysis of construction codes of conduct observed by mediators in England and Wales. A comparative analysis of codes from international sources contributes to the current debate on regulation and future policy developments.
This article assesses the effectiveness of the legal and institutional framework for workplace conflict resolution in Australia. Given the minimal role played by alternative dispute resolution (ADR) providers historically and presently, the article focuses on the role of Fair Work Australia (FWA) as the pivotal conflict resolution body under the Labor Government's Fair Work system. FWA's origins, functions, powers and processes under the Fair Work Act 2009 (Cth) are closely analysed, along with its various dispute resolution roles. These arrangements carry on a long Australian tradition of resolving employment and workplace disputes through public agencies. The article then considers the extent to which parties have been utilising various forms of ADR, the failed experiment with ADR under the former (Coalition) Government's Work Choices laws and the scope that remains for the use of ADR under the Fair Work Act. A brief comment is made upon the lack of attention that has been given to dispute prevention in Australia. This article concludes that, despite this gap, the Australian scheme of workplace conflict resolution has many positive features. It compares favourably internationally on a range of measures of effective dispute resolution systems, including accessibility, efficiency, expertise, impartiality, fairness, and its contribution to social change.
In reaching their decisions, arbitrators are currently expected to act like judges by listening fully to both sides and then withdrawing to write the final and complete decision. But because of some key differences between their roles, I argue, arbitrators and judges should exercise completely different styles of decision making. Unlike judges, who make decisive rulings in order to enforce the law, arbitrators are empowered and chosen by the parties themselves to handle specific disputes or govern continuing relationships. Instead of shifting a negotiated process into an authoritative one, arbitrators have the capacity to solicit input from parties as they craft the award. Under a new model of arbitration that I call “consensus arbitration,” arbitrators would facilitate negotiation between the parties but retain the power to break impasses with partial, incomplete decisions, behaving more like facilitators than judges.
Mediation is promoted by government to reduce the volume, cost and formality of dispute resolution, but evidence of these
benefits is inconclusive. A number of reports have analysed mediation of contract and similar cases in the County Courts but
there has been little empirical work in the employment field. This article considers the findings of an evaluation of (facilitative)
judicial mediation, piloted by the Employment Tribunal Service, for discrimination cases starting between June 2006 and March
2007. A matched analysis of the outcomes from 116 mediated cases, relative to an unmediated control group, found no significant
impact of early resolution attributable to judicial mediation. This article digs deeper into the additional qualitative and
quantitative evidence generated by the study to shed light on the process and outcomes. Detailed mediation reports completed
by the judicial mediators and ‘in-depth’ interviews are reviewed to describe the outcomes of mediation employment cases against
the outcomes offered in law, the views and levels of satisfaction of claimants, respondents and representative are considered.
Suggestions are made for either adjusting the facilitative mediation model or seeking an alternative that complements existing
dispute resolution services, particularly those provided by ACAS.
Purpose
The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK.
Design/methodology/approach
This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced.
Findings
The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer‐driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer.
Research limitations/implications
The qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large‐scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer‐mediators.
Practical implications
The data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice.
Originality/value
The paper provides original data on the practices of mediators and lawyers in construction mediation.
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