Disputes involving allegations of unlawful discrimination and the topics of prejudice and equality are arguably some of the most difficult, complex and sensitive to deal with and affect many organisations and employees in one way or another. The third event in CEDRs Mediation Matters series focused on how mediation could be used to manage and resolve workplace and employment disputes involving allegations or complaints of discrimination chaired by CEDR Director and Chambers Mediator Fiona Colquhoun. The panel included Chula Rupasinha, leading mediator and former Superintendent of the Metropolitan Police; Oliver Jones, Managing Associate at Simmons & Simmons; Deirdre Knox, Head of Employment at King; and Dr Zaza Johnson Elsheikh, CEDR Accredited Mediator.

What is the issue and how are our workplaces unbalanced?

The issue of discrimination is complex. While, for practical reasons, we all use social categories when we interact, sometimes the way people categorise one another can be influenced by prejudice. Prejudice is a bias that devalues people because of their perceived membership of a social group and can manifest itself in different forms which can result in marginalisation, victimisation and discrimination (Equality and Human Rights Commission). In the workplace, prejudice can appear in many forms. It can be direct and explicit but are more often indirect, subtle or unconscious, caused by misunderstanding, ignorance and poor judgement, either in language or behaviour.

While undoubtedly progress has been made in relation to protecting minority groups from unfair and unjust treatment, there is clearly a long way still to go. The 2010 Equality Act merged 116 separate pieces of legislation tackling discrimination in the workplace and in wider society. The Act makes it unlawful to discriminate against someone because of one or more protected characteristics including: age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex (gender) and sexual orientation.

While acknowledging Employment Tribunal statistics are not always the best measure, especially due to the recently overturned decision regarding fees, between 1990 and 2010 the number of claims increased 500% when they hit an all-time high of 240,000. In 2012-13, the last full year before the controversial Employment Tribunal fees were introduced, there were approximately 37,000 discrimination claims (with over 86,000 claims if unfair dismissal claims are included) shows that the issue is a serious one.

Ultimately, its often about behaviours

Discrimination allegations and claims can sometimes be particularly challenging as they are invariably about behaviours and the impact one, or a number of, individual(s) behaviours have on others. Despite the progress, there remain serious cases of discrimination in all of the protected characteristics. As we write, the recent revelations in Westminster concerning allegations of workplace sexual harassment and misconduct, indicate that attitudes and actions of certain politicians towards minorities and those with lesser power (women in particular) may have been part of the culture, and become acceptable over time. Most people would agree that the response now needs to be proportionate. We would suggest that the less serious incidents need to be resolved through a shift in dialogue; whilst those of a more serious nature need to proceed through fair and pragmatic disciplinary (and criminal) processes.

Time and timing is often very relevant to discrimination allegations. Mediation can deal with issues in real time; fast and quickly, facilitating conversations before matters become too frustrating, misunderstood and embellished. Contrast this with tensions and stress growing, a breakdown in relationships and the manifestation of extreme behaviours, often very defensive; and lives and careers are more likely to be damaged and in some instances destroyed.

The purpose of mediation and why it matters

It is clear that mediation has had a significant and unique role in employment and workplace dispute resolution. Mediation can provide a process and space for parties to understand the nature of an allegation in a confidential environment. This has the benefit of allowing the parties to voice the impact that certain actions may have had on them and potentially others. As one of the panellists from our recent event highlighted, the benefit of the mediation process is that it allows for parties to revisit their risk assessments through reality testing positions, assumptions and behaviour, in order to develop a new understanding and awareness of the situation.

This time to explore and reflect has the benefit of encouraging progress towards a workable settlement, if both parties think it appropriate, or an alternative to a negotiated agreement where one or both parties believe that allegations are better litigated. Bringing or defending claims in Employment Tribunals, both before and after the introduction of fees, is rarely an inexpensive exercise, with costs only being recoverable in certain circumstances. Mediation offers an opportunity for legal costs to be minimised whilst also limiting adverse media exposure, potentially damaging for both the parties and witnesses.

Furthermore, an early mediation process will offer to the employer an opportunity to understand pitfalls in its organisational culture, and reflect on working practices which may have contributed to and exacerbated the situation. Mediation can become a tool to create a culture of dialogue, reducing the number of escalated discrimination claims.

Adapting the mediation process

There are various considerations that should be taken into account when managing and mediating disputes with discrimination and equality issues. Who should be used to mediate? Is a process using an internal mediator or an external mediator more appropriate? Which skills and experience does the mediator require? Where should the mediation take place? Should the mediation be held in their organisation premises or is a neutral venue appropriate? When should the mediation take place? The answer to all of these questions is it depends.

The flexibility of the mediation process allows adaption on location, timing of the day when sessions take place, when breaks are taken and how parties work together. There may be a need to establish a framework for how the parties convene and ground-rules for how they interact. One of the strengths of mediation is that the parties have a major input into the process and complete control over the final decision. The parties control the level of their participation and direction and pace of mediation.

What are the specific challenges for the mediator when dealing with Discrimination and Equality issues?

In disputes concerning discrimination and equality issues, there are often complex group dynamics that the mediator may need to be alive to. One of those is power imbalances, which could be due to a partys gender, race, age and so forth, which could be inherent in the claim itself. While mediator intervention is not always necessarily needed when there are power imbalances between the parties, as there is so often, it is required when it affects a party’s ability to self-determination, a cornerstone of the mediation process.

In this instance, the mediator needs to firstly recognise the dynamic and address this challenge if he or she believes self-determination may be at risk (Rick Voyles, 2004). There are various ways in which a mediator can maintain their impartiality while ensuring that power imbalances dont compromise party self-determination. This can be achieved through managing a process whereby parties can be heard and are able to think through all of their options. An example of an intervention technique is through controlling the tempo of discussions, encouraging everyone to participate and using a range of questions and other active listening skills for understanding, expanding, probing and challenging to encourage decision-making.

The mediator however, perhaps ironically, needs to manage the perception of bias in their own particular style and behaviour. To safeguard the integrity of the process, they need to be sensitive to the specific issue at hand, to the parties history and needs, but also to their own preconceptions.

In conclusion 

This passed Mediation Matters event raised a number of interesting questions and issues from both the panel and the participants and far more than are briefly covered in this piece. However, we were left with the firm belief that it is very important and necessary for organisations to embrace dialogue-based processes, such as mediation, to actively manage tensions that can arise from difference, to benefit their workplaces but also to encourage an open and diverse society.

https://www.cedr.com/articles/?item=An-Unbalanced-Workplace-Discrimination-and-Equality-Issues-in-Workplace-MediationCEDR article :: An Unbalanced Workplace – Discrimination and Equality Issues in Workplace Mediation