As any employer who has been involved in an employment dispute will know, those that end up before an Employment Tribunal can be costly, time consuming, and distracting to resolve.
These are key reasons why more companies are looking to mediation to resolve disputes with employees.
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 still end up before an Employment Tribunal, however.
As searches on the government’s Employment Tribunal decisions website illustrate, the heating and plumbing sector has a nasty habit of making appearances. There
are 1,712 decisions based on the word ‘heating’, 599 on ‘ventilation’, and 248 on ‘plumbing’. Obviously not all of these cases relate to the sector – the figures pull out keyword hits – but the point is made.
The Point of mediation
In describing the process of mediation, Mali Smith, Legal Director and Mediator at Wright Hassall, says that it is voluntary, confidential, and a third party is brought in to try to reach an agreed resolution.
As Mali outlines, mediators are independent, professionally trained individuals, many of whom are lawyers. She says: “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, much lower than they are 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. And, lastly, mediation can save a valuable amount of management time.
The proceedings
With the benefits laid out, Mali emphasises: “Mediators are impartial and both parties are encouraged to speak openly; the mediator will only disclose information to the other side if agreed. The mediator will also stress the importance of both parties taking legal advice to complement the mediation that takes place which is why most are accompanied by their legal advisers.”
All parties need to understand the legal consequences of any agreement they make.
As to how the process works, the 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, questions their cases and draws out the salient facts.
Mali says: “Questions will be open and will not allow the mediator to offer solutions – any solution must come from the parties themselves with the 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, Mali’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.”
The aim is to reach a resolution so that a compromise is inevitable. However, not all mediation leads to a settlement or resolution, but the parties should know by the end of the mediation – sometimes for the first time – each other’s position and how
far they are willing to go in finding a settlement.
Within Mali’s experience, there are further alternatives: “Sometimes 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. And, just as importantly, the outside world doesn’t hear of the issues raised.
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