Q How does mediation work?
A Mediation is a mechanism or procedure for resolving all forms of legal dispute, including employment disputes. It is a voluntary private dispute resolution process, where a neutral person (the mediator) helps the parties to reach a negotiated settlement. The mediator has no power to make any decision or award. The parties involved (and usually their representatives) sit down with a mediator to discuss the issues and reach a settlement.
A mediation begins with the mediator explaining the process and answering any questions. Each side is then given the opportunity to explain their view of the dispute briefly and informally. The mediator then proceeds to meet with the parties separately. These private, confidential sessions continue until a settlement has been reached.
Q Why should I use mediation, and which cases are suitable?
A A mediation can be arranged in days or weeks, rather than the months or years involved in litigation. It is also less expensive, and making an early settlement will save management time and legal costs.
Using mediation also makes it possible to avoid unwanted publicity, as the process is confidential, unlike litigation.
It is important to note that taking part in mediation does not affect your legal rights and litigation can be commenced or continued while the mediation is pursued.
Agreeing to mediation should not be seen as an admission of failure. Instead, it can be a way of reaching a negotiated settlement when all other routes to negotiation have failed.
All types of dispute are potentially suitable for the mediation process, but particularly those where the employment relationship continues.
A recent survey conducted by the Employment Lawyers Association gave the following examples of where mediation has worked well:
– An employer agreed to undertake certain health and safety checks in order to meet the concerns of their employees.
– In a restrictive covenant dispute, the parties agreed to a more limited form of constraint than set out in the contract of employment.
– In a disability discrimination matter, the employer agreed to pay for a disability audit.
Q Are there any disadvantages to mediation, and is there a chance that the employees will just use the mediation to gain information about the employer’s case?
IThe disadvantages are that you may not reach an agreement, and will not establish your legal rights. In terms of giving the other side information, you are in control of what you disclose at the mediation, and if you do not want the other side to know something, keep it to yourself or tell the mediator in confidence. If the information is something that might help convince the other side to accept the settlement, or is something they will find out later through disclosure anyway, you may have little to lose by disclosing it.
Q How do I choose a mediator, and who bears the cost?
A There are a number of organisations with a list of mediators (for example, the Centre for Dispute Resolution (CEDR), the ADR Group and the City Disputes Panel). Both parties must accept the chosen mediator, and both will have a say in the selection.
The parties pay their own costs. Mediators generally charge an hourly rate or a fixed fee based on a half day or a full day of mediation. The costs are normally split equally between the parties involved, unless otherwise agreed.
Q How successful is mediation, and what if it doesn’t work?
A Mediation is usually the final step, with most cases settling. If it doesn’t work, you won’t have lost anything. You can still go to court or tribunal if you wish; the mediation is effectively ‘without prejudice’, so details of the mediation discussions should not be closed during the court or tribunal proceedings.