ExEcutivE REPORt Talking away trouble
Workplace disputes that end up before an Employment Tribunal can be costly, time consuming and distracting. It’s better to leave it to the professionals, says Adam Bernstein…
Firms that prefer to have their day in front of a judge will pay for the privilege. Solicitors can charge from £3,500+VAT and disbursements to handle an unlawful deduction of wages claim, more for an unfair dismissal claim, and in excess of £9,000+VAT and disbursements to defend a discrimination claim. On top of that is management time and any awards made in favour of the claimant.
Regrettably, some firms do end up before an Employment Tribunal. As searches on the government’s Employment Tribunal decisions website illustrate, there are numerous cases with references to, for example, hire and plant.
The point of mediation In describing the process Mali Smith, a legal director and mediator at Wright Hassall, says that it is voluntary, confidential and uses a third party to try to reach an agreed resolution.
As Smith outlines, mediators themselves are independent, professionally trained individuals, many of whom are lawyers. She says that “mediators do not offer any opinions on the dispute; they are there purely to facilitate a solution and help parties reach an agreement that works for all.” In her view, this is a far more constructive approach than adversarial court proceedings.
And the benefits of mediation for employers can be substantial.
Firstly, costs are, generally, considerably lower than when pursuing a tribunal claim. Next, the process can be considerably faster – there is no tribunal backlog to negotiate and, depending on the matter being mediated, a dispute can be resolved within a short timeframe. Thirdly, mediation is confidential; the result is not made public.
Lastly, mediation can save a considerable amount of management time.
The proceedings With the benefits laid out, Smith is keen to emphasise that a mediator will not advise either party within the mediation. As she says, “mediators are impartial and both parties are encouraged to speak openly; the mediator will only disclose information to the other side if agreed.” She adds that “the mediator will also stress the importance of both parties
will be open and will not allow the mediator to offer a solution - any solution must come from the parties themselves with assistance of the mediator.”
Preparation is key No one in their right mind would walk into a courtroom unprepared and mediation is no different. So, Smith’s advice here is clear: “Parties should start their preparation with a position statement and evidence that outlines their case, and which offers a solution that looks into the future.”
From her standpoint, the aim is to reach a resolution so that a compromise is inevitable. However, she knows from experience that not all mediation leads to a settlement or resolution, but at least “the parties at the end of the mediation should know, sometimes for the first time, each other’s position and how far they are
taking legal advice to complement the mediation that takes place which is why most are accompanied by their legal advisers.” All need to understand the legal consequences of any agreement they make.
As to how the process works, parties are invited to provide a short summary of their case for the other side and for the mediator. They agree a suitable venue which must have at least three rooms. The mediator will circulate a mediation agreement, setting out the terms of the mediation including that of confidentiality. Each party retires to their respective rooms and the mediator moves between them, questioning their cases and drawing out the salient facts.
Because the mediator must remain neutral, this means, as Smith explains, “questions
willing to go in finding a settlement.” She continues: “Sometimes, though, after mediation parties will meet and sign a settlement agreement between themselves. Mediation can lead to ‘out of the box’ solutions being discussed at mediation that lead to a resolution.”
Summary In short, mediation should be, and is being, actively encouraged as a way of resolving employment disputes. It is cost-effective and can produce a better outcome if both parties fully commit to the process. n
Find a mediator: Civil Mediation Council -
https://civilmediation.org Employment Tribunal decisions:
https://www.gov.uk/employment-tribunal- decisions
16 Executive Hire News - September 2023
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