Weekly dilemma: Mediation

I am in the middle of an employment tribunal dispute with an employee who has claimed that a decision not to promote him was discriminatory, but has not resigned. His solicitors have suggested mediation – is that a good idea or will it be just more legal costs?

Like it or not, mediation is probably the way of the future in employment litigation. Whether or not it will work in your case remains to be seen, but statistics suggest that mediations conducted through the employment tribunal lead to a settlement in 65% to 70% of cases, and more than 80% of private (commercial) mediations are resolved on the day, so the odds are good.

To help with your decision, some pointers on the nature of the beast. Mediation is:

  • voluntary – either party can refuse to participate, either at all or beyond a certain point;
  • confidential, both as to outcome and anything said or proposed in the course of the process;
  • focused on solution rather than blame or legal liability;
  • unlimited in the range of possible outcomes;
  • quick – the availability of commercial mediators more or less on demand (just put “mediation services” into Google) means that the parties can often side-step the bulk of the delays inherent in tribunal proceedings. Where there is even the remotest chance that the relationship might survive, it is obvious that the sooner the dispute is resolved, the better; and
  • cheap – a relative term, obviously, but since the mediation is focused on the solution, not the problem, much of the preparatory work associated with formal tribunal proceedings can be avoided, especially witness statements. In addition, the vast majority of mediations take place over one day only, while many tribunal cases (especially discrimination claims) take somewhat longer.

On the other hand, mediation is not:

  • a finding or remedy imposed by a third party or by arbitration;
  • public, unlike the tribunal;
  • based on technical legal analysis;
  • a cure-all – it will not work in every case and there can be good grounds for an employer declining to participate;
  • an admission of liability by the employer or of weakness by the employee; or
  • easy – to make the most of the process you will need to engage fully in it, with an open mind and a willingness to be challenged and, if necessary, to look outside traditional positions of right and wrong, vindication and “fairness”.

In broad terms, the mediation process recognises that both parties to a dispute usually want it resolved. There are exceptions to this – such as where a party is driven by emotion of principle or the need to establish a precedent – but, when reality is allowed to intrude, a solution is generally better than no solution. Generally, both parties accept within themselves that there may have to be some degree of compromise and that the solution they would ultimately swallow may be less than their ideal. There is much truth behind the old line that a good settlement is one that makes both parties equally unhappy.

In considering outcomes, the mediator will encourage the parties to look at remedies or solutions that would not be available to them through formal tribunal proceedings, things that may be emotionally or professionally more valuable to them than mere cash. One good reason for using mediation in your case is the strain placed on working relationships by the background litigation, and the risk of a victimisation claim if the employee senses himself in any way disadvantaged.

He probably wants to leave and you almost certainly want him to do so too, but neither can raise that possibility: you for fear of his taking it as victimisation/constructive dismissal; and he so as not to weaken his negotiating position. The employment tribunal cannot help you with this – depending on the outcome, your employee will simply become either terminally embittered or unmanageably smug. However, a mediation could include provision for an apology, training, contractual changes, an internal transfer, or simply an agreed severance.

The role of the mediator is to encourage each party to consider more consciously the attractions of a solution on some terms or other as contrasted with the alternatives if no solution is reached. You may well consider the claim against you to be misplaced, but you cannot avoid the reality of legal costs, the time and distraction caused by the tribunal process, the possibility that you are wrong, and so on. Equally, your employee, confident though he may seem, also faces stress, expense, publicity, litigation risk, etc. You will both be pushed hard to think about what you need, rather than what you want, but it always remains your decision to settle or not in the end. As a result, since the terms of the settlement are the parties’ own, they tend to “stick” much better than other resolutions.

At the end of it, if the mediation has not worked, you will be out of pocket by the amount of any legal costs incurred. However, you will have given nothing away and experience shows that even mediations that fail on the day can alter the parties’ thinking so that terms are nonetheless reached shortly afterwards.

David Whincup, partner and head of employment, Squire Sanders Hammonds, London

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