The voice of reason

With the increasing need to improve the UK’s employment tribunal system,
Simon Kent looks at mediation pilot schemes that are providing a possible
alternative to litigation

UK employers need a tribunal fit for the 21st century, according to a report
by the Employment Tribunal Taskforce earlier this year. Among its
recommendations for taking the pressure off was the increased use of mediation,
and there was a direct call for Acas and others to run pilot schemes in this
area to explore and develop best practice.

With the taskforce disbanded, the DTI has yet to respond to the report,
Moving Forward, and while Acas continues to work across a variety of resolution
techniques, there are currently no official schemes promoting mediation within
employment disputes.

At Littleton Chambers, however, John Bowers QC is running a pilot scheme
with a local authority which he hopes will eventually give useful information
on mediation, such as what kind of disputes are most suitable and how
proceedings should be instigated and managed.

According to Raymond Jeffers, partner at solicitors Linklaters and chairman
of the Policy Sub-Committee of the Employment Lawyers’ Association, such
examples will prove crucial to the wider uptake of this technique. "I
think we have a ‘chicken and egg’ problem," says Jeffers. "What we
need is more successful mediations, but that won’t happen until there is
evidence of successful mediations."

One could argue that it is a mark of the success of mediation that examples
are so rare. "One of the strengths of mediation is that you can keep the
entire dispute confidential," explains Terry Jones, a director at the
Centre for Effective Dispute Resolution. "This allows you to discuss
issues and make offers you might not be able to if there was disclosure."

Jones cites one case of sexual harassment where mediation avoided the need
for public argument and counter argument.

At the same time, he believes keeping the details of any resolution
confidential means employers avoid the possibility of repeated claims from
other employees intent on gaining similar awards.

Mediation is more suited to some disputes than others. It is particularly
useful in instances where the employment relationship is required to continue –
or there is a chance that the relationship can continue – rather than allowing
a dispute to automatically lead to termination.

Jones also argues that from an HR point of view, opening a dispute to
discussion through mediation enables the employer to learn from the event – to
realise the impact of particular organisational and personal behaviour. The
results of mediation can therefore be channelled back into training and
developing staff, whereas a straightforward tribunal will usually bring only a
win or a lose situation.

The most valuable element of mediation is its flexibility. In Jeffers’ own
experience, a dispute over compensation was subject to a 12-hour day of
mediation, at the end of which there was no resolution. However, the process
had shifted the argument sufficiently to enable the parties to make an
agreement the following day.

A similar outcome occurred in an employment dispute mediated by CEDR Solve.
The case centred on a dispute between the deputy head and head of department at
a further education institution. While the mediation itself did not provide a
resolution, it did offer a period of reality testing and reflection, after
which a severance package was agreed.

CEDR also resolved a dispute concerning personal injury, agreeing a payment
of £200,000 to an employee who was previously looking for £1m in damages
through a three-week trial. In each case, the increased opportunities for
resolution made available by mediation resulted in a better outcome than would
have been achieved through the litigation process.

But while flexibility is key, lack of structure may also be one of the
reasons why employers have a difficult time relating to the technique.

Employers may be unwilling to offer mediation because until the process
starts, there is no way of telling how long it could last, what costs may be
incurred or what the outcome will be.

Indeed, fears exist that entering mediation can result in one side giving
away their position or demonstrating a lack of confidence in their argument.
And if mediation is unsuccessful, time and energy has been spent and litigation
may still follow.

One solution is to introduce a dispute policy which puts forward the option
of mediation for any employee grievance or dispute as soon as it arises.
Whether both parties decide to take that route or, indeed, whether the dispute
is suitable for mediation can then be decided on a case-by-case basis.

"I think the problem with mediation largely is one of perception,"
says Julie Quinn, a partner with solicitors Allen & Overy. "Often
mediation is first discussed when you have already started down the road of
litigation. One of the parties will say this is appropriate for mediation but
by then it can be too late."

"You need to create a policy whereby mediation is offered up
front," agrees Raymond Jeffers. "You don’t wait for it to come up or
be suggested, your policy should state that if you have a problem you would
like mediated, then there is a clear process by which to do that."

CEDR’s website (www.cedr.co.uk) contains suggested contract clauses which
cover mediation and ADR processes more generally. CEDR’s approach has been to
create a ‘menu’ of clauses from which employers can choose according to how
they intend to integrate mediation into their processes.

For mediation to work, however, both sides must want to find a resolution.
There must be agreement on issues such as the length of time the mediation will
take, precisely what information is disclosed and when. Most importantly, both
parties must approve of the mediator selected for the exercise.

The clauses essentially ensure these agreements are made up front before
mediation begins. There is also provision for litigation proceedings to
continue in parallel with mediation. In this way, employees can agree to
mediate without jeopardising their opportunity to launch legal proceedings.

"There should not be a rigid timetable covering every mediation,"
says Raymond Jeffers. "That is the strength of the method. However, the
mediators must lay down the guidelines for the process by which they operate.

"They must decide how long the process will last, what kind of
information they will take and use and thereby lead the parties in a particular
direction."

Finding a suitable mediator is not a straightforward matter, although their
numbers are increasing thanks to training operations of organisations such as
CEDR and Littleton Chambers.

"Lawyers and judges don’t necessarily make the best mediators,"
comments Julie Quinn. "They can be too focused on the strengths and
weaknesses of a case or be too adversarial about a dispute."

If finding sufficient ‘carrots’ to tempt organisations into mediation is
proving difficult, there appears to be an increasing amount of ‘stick’ being
brought to bear.

Quinn notes that this year’s Employment Act insists that employees exhaust
all internal processes before issuing tribunal proceedings, and the
introduction of a mediation clause in company policy would mean mediation
becomes a definite route for the exploration of disputes.

However, some cases have already demonstrated how failure to mediate can
have consequences. In Dunnett v Railtrack, 2002, 2 ALL FR850, the court
declined to order the defeated claimant to pay Railtrack’s costs since
Railtrack had refused to follow the court’s prior suggestion of mediation.

While the UK’s own tribunal system and workplace can seem, at times, purely
a blame culture where claimants try and secure the highest award they can,
mediation is increasing and is likely to continue to do so. CEDR’s own work in
this area rose from 4 per cent to 11 per cent of cases last year. Littleton
Chamber’s pro bono pilot scheme is one instance of the public sector exploring
the method.

Meanwhile, Terry Jones notes that the practice is more common abroad, in
places such as New Zealand, Australia, and even the US.

It may be that mediation finally gains a strong foothold in the UK by being
imported by multinational companies for whom the option is already an accepted
form of dispute resolution.

Find out more…
on mediation at www.cedr.co.uk

Timetable of a mediation

– Pre-mediation preparation phase
Both sides must agree to mediation, with the aim of resolving the issue. They
must agree on a mediator and make initial contact to decide issues such as timetable,
venue and dates of mediation. The mediator may ask both parties to carry out a
risk assessment concerning the issue under discussion

– Opening phase of the mediation Agreements to mediate
are confirmed. The mediator sets out and agrees the way forward. Opening
statements or presentations are made

– Exploration phase The mediator identifies key issues
and clarifies and prioritises these issues. This may be done in separate
meetings or in joint session depending on the actions decided by the mediator

– Negotiating phase Possible solutions are aired
(jointly or privately) and tested

– Concluding phase Agreement is reached and recorded.
This may include proposals for action by management and recommendations
addressed to the organisation. It will also cover boundaries of confidentiality
– what can and cannot be reported outside the mediation session. A joint press
statement may be agreed. If there is no settlement, offers of further
assistance from the mediator may be made

Source: CEDR

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