Abstract
I was delighted to welcome Professor Bryan Clark to the show. He is a Law and Civil Justice professor at Newcastle Law school. Before that, he spent fifteen (15) years at the University of Strathclyde in Glasgow, where he was Head of the Law School from 2013 to 2016. He currently serves as a Trustee for the Arab Mediation Centre, Chair of the Validation and Accreditation Panel for Relationships in Scotland, Global Adviser (UK) for MediateGuru, and Adviser for Lex Erudites. Professor Clark teaches postgraduate and undergraduate classes in commercial law, mediation and dispute resolution and acts as the student Mediation Coach for the Newcastle University Mediation Society teams.
His main teaching and research interests lie in mediation, civil justice, the workings of courts, judges and lawyers, and commercial law. Current projects focus on the Singapore Convention, International Commercial Mediation and Judges’ experiences and views on technology in the courtroom.
In this episode, we analysed the following questions:
1) Are employees or workers aware of ADR options regarding disputes or conflicts that might arise at the workplace?
2) Why is ADR more prevalent or popular in the more complex societies (in this context UK) than in the less complex societies?
3) To what extent are employees encouraged to use ADR to settle discrimination, bullying and harassment in the workplace-UK is the given context.
4) What is the way forward for mass advocacy or awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
5) What are your suggestions for disseminating ADR so people can utilise these mechanisms more?
6) What is your advice for people pursuing a career in ADR?
7) Can you tell me more about launching the LLM in Mediation and International Dispute Resolution at Newcastle University?
* In September 2022, Professor Clark, in partnership with the mediator academy, launched an online LLM in Mediation and International Dispute Resolution at Newcastle University: https://www.ncl.ac.uk/postgraduate/degrees/5890f/
Introduction
Are employees or workers aware of ADR options regarding disputes or conflicts that might arise at the workplace?
The awareness is definitely spreading now; ADR and mediation, particularly, are struggling to get a few holds in many different jurisdictions initially. That has been the case in the UK to some degree and certainly also in the workplace and employment disputes, but things are changing quite a lot, and there is a lot of awareness that is going on. People are aware of mediation, and many people have experiences with that in different contexts.
Essentially, what is happening in large organisations now, they quite often have their in-house dispute resolution, particularly mediation, so if there is some sort of dispute or a conflict between employees, they can be referred to an in-house mediation service that is either offered by trained staff and independent staff of the organisations or by an external third party organisation bringing in mediators.
For instance, at New Castle University, they have an in-house mediation scheme of staff disputes. But equally, in the United Kingdom, they got other external mediation providers offering workplace employment mediation. So the civil mediation council has a list of accredited workplace mediators, and that space or area of activity is growing and equally people/ organisations are beginning to interact with the employment tribunals services. For instance, if there is a real legal dispute as it were he/ she may be offered mediation service by an employment tribunal judge.
Prof Bryan Clark pointed out that ‘after they have assessed your dispute for suitability, they may offer you that service though parties do not have to accept it, but they can go down that route. If they like one of the judges will mediate if the case is not successful then another judge will deal with the claim thereafter. However, that has grown quite a lot since it was brought in early 2006 and equally the other way- ADR in the employment tribunal services; its called Advisory, Conciliation and Arbitration Service (ACAS).’
Why is ADR more prevalent or popular in the more complex societies (in this context UK) than in the less complex societies?
At a more a generic level, as society becomes more complex it diversifies into different social classes. We get more competing interest, less social cohesion and more individualism sometimes and growth in commercial activities. That can lead to a great number of disputes arising for this reasons that put a strain on the formal mechanisms for resolving disputes such as courts.
For instance, in most jurisdictions which ADR; mediation in particular has become very well developed. That happened because of the promotion through the formal court system where courts begin to refer parties to mediation. There is an attempt to save the formal court system because it is becoming overburdened, its expensive, its time consuming. Look back at the Pound Conference in 1976 in USA that is what propelled the development of mediation in the USA and it has happened in many different jurisdictions. It is interesting that the alternative ways of resolving disputes often only begin to develop when it become linked to the traditional ways i.e. the formal ways to a great degree. That is quite an interesting thing that has occurred in terms of mediation’s development. It is pertinent to point out that when mediation begin to develop in the USA it spread across the common law world. It was perceived as one kind of western new development and certainly across continental Europe and the civil law tradition. However, there was a resistance to that, it was seen as something foreign to the civil law tradition even though in fact settlement in todays processes have been very much part of their court system for many years. Suffix to say there was some sort of resistance initially seen as an Anglo-American western process and some countries resisted it because of that. Nevertheless, those barriers have become less pronounced today due to the developments in many jurisdiction now and a lot of these developments is made possible because of the government, the state, public bodies, the courts and the judiciary- this developed mediation or ADR in most jurisdictions.
What is the Way forward for the Mass Advocacy or Awareness of the benefits of utilising ADR in settling disputes or conflicts in the workplace?
Education: It is a combination of things that you will need; clearly awareness raising is the key thing and is about Educational, its about disseminating knowledge and sophisticated awareness to what the Mediation process entails and that means designing a message which is going to be relevant for your audience. Is not enough to talk about the potential benefits of mediation as a quick, cheaper, more harmony based process because actually people in dispute need to know what the process is and how it can positively impact on them. Hence we need to remember that when people are in the midst of a dispute, they are not always prone to acting rationally; they may be very angry, they want to win, they want to fight, they want to enlist champions such as lawyers to fight their corner. They also want someone to hear their case and tell them they were right and the other party was wrong. They want to see the other side suffer and be penalised in public if possible, and mediation does not even promise that; rather, its process is based upon compromise and harmony and coming together, talking and resolving it. So it is difficult to sell meditation; you have to sort of normalcy it to some degree, and you got to institutionalise it to some degree.
For example, organisations have developed their own disputes designs or scheme; they quite often put mediation at the forefront of that and rule that out and say this is how we are going to resolve things initially or how we are going to refer to matters initially and that can be quite helpful, but you have to get people to train properly, funded properly. But in the tribunal system, we are trying to normalcy settlements by having ACAS reconciliation, by having Judicial mediation where Judges offer mediation, and that is a kind of halfway house between mediation as we normally see it and Judicial determination; it is like a judge in a courtroom mediating your disputes giving people that kind of task- that importance as a judge hearing the case but as a mediation process. Thus it is a combination of the two processes. So there are a lot of different ways we can try and promote mediation, but it must begin with Education. It begs the question, ‘how do you want to sell the process to someone who is in the midst of a dispute’?
What are your suggestions for disseminating ADR so people can utilise these mechanisms more?
It depends on what kind of ADR; if it is workplace disputes, there should be information dissemination through the organisation, through interactive video-based programmes where you can see the scenario playing out so that people can see what mediation. The problem is that mediation is quite hard to describe. However, it is pretty easy for the mediator to say, ‘this is what I am going to do, so I am not a judge, I will not take sides, I will not tell you what to do, I will not issue you a decision but what the mediators do is quite hard actually to explain to people.
For example, showing people a demonstration- like having a sort of interactive online examples (videos) where parties can work through to see how mediation works. These are helpful tools that people can use to visualise the process. Getting lawyers involved in some areas, like employment law, is good, but commercial matters do not need lawyers. It is imperative to point out that parties who mediate get advice to mediate from their lawyers; thus, lawyers need to be educated about the process.
In another context, Judicial Education is essential- most times, judges suggest or recommend that the parties mediate. So the ACAS model was to make people find out about mediation the same as family mediation -parties are not compelled to mediate. However, they must attend one of the mediation meetings where the mediators go in with them to discuss how the process will benefit them in their dispute, and then they can decide on whether or not to proceed. These are different ways that can be used to nudge parties towards using mediation.
What is your advice for people who want to pursue a career in ADR?
It is pretty difficult to forge a career in ADR though it depends. For example, in terms of becoming a third-party neutral or a mediator. It is very difficult for a young person to become a fee-earning mediator. For instance, in high-value commercial mediation, rightly or wrongly, the market tends to choose people that are vastly experienced in a related discipline.
Conclusion
This essay addressed the complexities of workplace conflict in the UK while enlightening employees and potential users of ADR on the steps to follow in the event of conflict arising or in the case of any arising dispute or conflicts in future. The blogger believes that potential and would-be users should take on board the pros mentioned herein and opt for ADR, particularly Mediation or Conciliation.
Click here to listen to the full version of Episode 23 of Expert Views on ADR (EVA) podcast.
