Wednesday, 18 May 2011

ACAS reality test

One means by which the Business Secretary expects to reduce the burden on Government-funded Employment Tribunals is to channel more claims through ACAS and expect them to resolve matters informally.

Commentators make the obvious point that ACAS is already overstretched and lacks the capability to do any more.  The only answer to that could be more personnel, more training, more skills...

..which, er, requires funding.

It will also require a serious change of culture because, with limited exceptions, my experience is that ACAS is rarely of any assistance.

In most cases we receive a standard form letter from ACAS at some early stage of proceedings.  It rarely goes further than that but if a caseworker becomes involved, it is generally disappointing.

I can think of one ACAS contact in my region who is notable only for leaving messages to “call back” when I am busy.  I have been through the experience of calling back numerous times only to meet with voicemail. No information exchanged.

We use e-mail a lot.  I have asked for messages to be e-mailed. What do I get? An e-mail asking me to ‘call back’. Yawn.

The worst failing is when a dialogue actually ensues between the parties and is then limited to the blind reporting to each side of the other party’s position - usually in terms of what they are not prepared to do. There is no facilitation, no mediation skill - just posturing by proxy.

It is a frequent feature of negotiations that the parties need to “take positions”.  I am sure I can do that far better by direct contact than through an uninterested agent.

If it is to be any substitute for the courts that have traditionally dispensed justice for hundreds of years, a mediation service needs to add value - not simply put an unattractive package around a war of attrition. 

There is a simple skill to be learnt, but one which I doubt the Government will fund or promote effectively - reality testing.

Most of us have heard stories about the exemplary judge, the one who although he decided against you listened and understood - let you have your say.  Lord Denning was a popular example.

It is important in many situations to allow people to unload their arguments, to have their say.  There is a chance along the way that without any prompting they will realize the weaknesses, even openly acknowledge them.  Certainly they can be helped to do that.

More than anything it is an investment of time, with the recognition of the aims and key skills.  There are people who can do it, but are there enough, are they supported, are they inspired and what will compel disputants to use them?

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