The ruling signals a welcome recognition of the important role that alternative dispute resolution (ADR), in particular mediation, can play in helping parties in civil disputes resolve their issues, quickly, fairly and cost-effectively.
Employment lawyers, HR professionals and business leaders will be watching closely.
The ruling will undoubtedly cause a long-overdue ripple effect in the employee relations and employment law fields, and we are likely to see a significant and welcome rise in the use of more restorative and constructive remedies for workplace conflicts and employment disputes.
Dispute resolution reaches record demand
ADR processes, including mediation and conciliation, are already actively encouraged in employment tribunals, following the Employment Act 2008.
This was recently enhanced by guidance from the president of the employment tribunals earlier this year, which included the introduction of a new dispute resolution appointment – plus enhanced roles for judicial mediation and judicial assessments
The Churchill ruling should go some way to helping shift the backlog of cases clogging up the tribunal system, too.
There was a backlog of more than 50,000 cases at the end of 2022, and complex cases often take more than two years to get to the final judgement.
The reliance on the use of litigation and formal processes to tackle workplace conflicts and disputes is damaging, destructive and no longer fit for purpose in the modern workplace – and the Churchill judgement, I hope, will press home the message.
These approaches cause untold stress and distress to the parties involved, eat up an inordinate amount of HR time, and cost organisations dearly; not just in financial terms, but also in declining employee engagement, productivity and resulting damage to corporate reputation.
There is an urgent need for UK companies to reframe these retributive approaches of the past, which push people into right/wrong, blame/shame, win/lose scenarios.
Forward-looking organisations – Burberry, the BBC and Nationwide to name just a few – have recognised that restorative approaches, including mediation, coaching and facilitated conversations, are a far more effective way of tackling the conflicts, complaints and concerns that arise in the workplace.
Why the increased demand for conflict resolution services?
They have chosen to adopt an over-arching ‘resolution framework’, which emphasises early resolution and dialogue and gives people a wide range of options for resolving disputes, while still allowing recourse to formal and legal routes in the few cases where this is necessary.
Mediation is an important ingredient in this menu of resolution options.
Trained mediators are skilled in helping people disagree well. They can help to break down a problem and transform it from dysfunctional and destructive into functional and constructive.
They bring people together to engage in powerful dialogue and to identify and agree a mutually acceptable outcome.
Calling in a mediator is not a sign of failure; if anything, recognising the need for help is a measure of success and maturity.
Of course, mediation is not suitable in every scenario, but the triage system built into resolution frameworks ensure that mediation is never suggested in a situation where it is likely to cause harm or distress.
Our experience, backed up by research from the workplace and civil justice arenas, shows mediation to be a successful intervention in over 80% of cases.
In this exciting new world of dispute resolution, HR will need to reframe and redefine its role.
How to have positive conflict at work
No longer reliant on adversarial and damaging policies and processes, the people and culture function has an important role to play in supporting this shift towards more empathetic, empowering, collaborative, and humane approaches to resolving issues at work.
People professionals will play a vital role in embedding the language and practices of empathy, understanding, inclusion and insight within the business.
It will also require a sea change in the role of managers and leaders.
The confidence and competence to facilitate open, honest dialogue between people is a core skill that organisations should be actively developing in their leaders and managers.
These aren’t soft skills or ‘nice to haves’, these are tough skills which will be essential for the future of work.
For over 30 years I have been arguing that the way that we resolve disputes and disagreements at work is a defining feature of the culture of our organisations.
Combative, adversarial and retributive HR policies and management systems do not engender the kind of transformational culture that creates thriving individuals and high performing teams.
The Churchill ruling may have begun a worthwhile debate about the need for organisations to transform the way that they resolve conflicts at work.
We need HR to build bridges not walls: mediation works.
David Liddle is CEO and chief consultant at The TCM Group and author of Managing Conflict
