Legal mediation: time to start talking!

With court business still at a low ebb, there has never been a better time to consider mediation. Find out how online mediation works, where to access it and how you can try it out

Impact of COVID-19 on civil business 

First, the bad news. Ongoing Government restrictions mean that, for the foreseeable future, we’re likely to have social distancing in one form or another. It therefore follows that “normal” human contact is, at best, going to be difficult. One result is that many legal actions have been paused and proofs/tribunals in civil cases have been put off, causing a large backlog of cases. Many have been put back by years. The civil justice system as we have known it is not functioning, clients’ interests cannot be taken forward quickly, and lawyers’ businesses are suffering. So, what’s the good news?

Well, there has never been a better time for lawyers and clients to consider legal mediation! Mediation is an approach that puts client involvement, and their best interests, first. It is quicker, and cheaper (for both clients and lawyers as there are no court fees), than going to court, carries less risk and, with direct solicitor involvement, keeps clients fully legally informed and in control. Most importantly, using an appropriate online conferencing facility (most mediators use the Zoom Pro platform), it is possible to maintain client and legal confidentiality (more on this later). The platform provides for clients and their lawyers to be kept in a waiting room, then to be admitted to a joint meeting room and, when the need arises, to be placed in breakout rooms for private, confidential conversations between parties, their lawyers and the mediator.

In Scotland, while several lawyers, who are early adopters, use mediation, they are still a minority. Many litigation lawyers haven’t yet had the opportunity to become familiar with, or take part in, legal mediation. In some senses, the Scottish legal profession has seemed reluctant to embrace it, despite it being the norm in many other jurisdictions, but current circumstances may persuade it to do so.

Legal mediation as a win-win-win option

In Ontario, Canada, mandatory mediation has been part of the court procedure for 21 years. Most litigated cases go through mediation. A mediator is appointed and arranges a mediation meeting early in the court process. Prior to that, parties must exchange a mediation statement setting out legal and factual issues, alongside supporting documents. Failure to comply leads to financial penalties being imposed and can result in cases being dismissed or defences repelled. 

Many litigation lawyers worried that mandatory mediation would threaten their financial wellbeing through reduced fees. Unexpectedly, the outcome was much more positive. Mediation, now an integral part of court procedure, means lawyers must prepare themselves, and their clients, to participate and negotiate effectively, in the same way as they need to prepare for a proof or tribunal hearing. As a result, those lawyers recover legal costs and fees in preparing for, and taking part in, the mediation. They get paid a lot earlier too, rather than having to wait until a settlement just before a court hearing or a long time afterwards. In theory, this should free their time to address the cases of additional clients. 

In Scotland, mediation is not an integral part of the court procedure, but it is still available for lawyers and their clients to use and recover costs through efficiencies of the process. In commercial mediation the norm is for both parties to bear their own mediation costs (mediators cost a lot less than court cases). In employment/workplace mediation, employers bear the cost of mediation for both parties. Likewise, in litigation where insurance is a factor, for example personal injury cases, it is the norm for insurers to meet the cost of mediation, including the costs of preparing for it and participating in it. 

Prior to mediation, it is usual for the parties to enter into an agreement to mediate, through which they commit to engage with the process with a view to reaching a mutually acceptable outcome. Within this, it is possible, indeed desirable, for both parties to identify who is meeting the preparation and participation costs to avoid dispute afterwards. It is in the interest of insurers to participate in mediation at an early stage. It prevents the parties becoming embedded in their positions, and will reduce their long-term legal costs, while failure to participate in an offered mediation could result in increased costs by way of court-imposed penalty. 

In the event of settlement following mediation in a litigated case (the vast majority of court cases do settle), or even in an unlitigated one, it will result in lawyers being paid for their hard work much sooner (a particular boon at this time) and, more importantly, their clients’ cases will be settled much earlier, leading to happier clients and capacity for further cases. Generally speaking, clients whose legal disputes are settled quickly with less cost, are more satisfied and therefore more likely to instruct the same lawyers in future cases. If they’ve been dragged through an expensive court or tribunal process for years, they might not be!

Accessing mediation

Scottish Mediation keeps a Register of Accredited Mediators for the Scottish Government – details can be found on its website at www.scottishmediation.org.uk. Other organisations that include mediators are the Law Society of Scotland, the Faculty of Advocates, RICS, CIArb, Relationship Scotland, the University of Strathclyde Mediation Clinic and Edinburgh Sheriff Court Mediation Service, supported by CAB Edinburgh.

Zoom and online mediation/solicitor training

You needn’t wait for normal service to be resumed through the courts in order to progress a client’s case. Mediation can be undertaken now, safely and confidentially, online. Everyone can be there, they can see everyone else and participate to the extent that they want. In the run-up to mediation, the mediator can have pre-mediation meetings with lawyers and their clients by video, enabling parties to become familiar with and trust the technology. By doing so, people are reassured that the actual mediation online is something that they can participate in and that it will work.

Paul Kirkwood, Law Society of Scotland accredited commercial mediator, and Malcolm Currie, a CEDR accredited workplace/employment mediator, are teaming up with Scottish Mediation and its director Graham Boyack to offer online CPD mediation training, using Zoom Pro, to all professionals including mediators and lawyers. The sessions will be fully interactive, featuring mock mediations using commercial and employment scenarios where participants will be coached and encouraged to use the Zoom Pro technology, including the use of breakout rooms. Participants can choose to participate as mediators, clients or lawyers in the role-plays, ideally trying all three for a more ’rounded’ feel of the process. This will provide a safe online learning environment for all, and hopefully go some way to demystifying the mediation process for many lawyers, to give them greater confidence to participate in legal mediation, look after the best interests of their clients and get their businesses going again. Details are on the Scottish Mediation website, but feel free to get in touch with any of us.

This article was previously published in Law Society of Scotland Journal, June 2020

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Taking Mediation to the Next Level

About a year ago, Founding Director of Strathesk Resolutions, Malcolm Currie, undertook to take his mediation to the next level. Sounds good! But what on Earth does it mean? Read on to find his explanation…

“Well, the starting point for me was to go through the CEDR Mediation Skills Training course. That’s not to say there was anything wrong with my original training (The Mediation Partnership did a grand job!) but the accreditation through CEDR is recognised in 96 different countries world-wide, so it gives an immediate widening of spread.

“I was already a CEDR Associate, largely for consultancy and negotiation skills training around workplace (especially collective bargaining) issues. However, they had also invited me to join the CEDR Mediation Skills Training Faculty, so it made absolute sense that I went through the training before doing so.

“It was an interesting challenge. I’ve never been comfortable with being assessed (something that definitely held me back as a rugby referee, and part of the reason why I now coach), so the thought of going through one of the most rigorous assessments of one of my professional skills was quite daunting. It helped that the course was focused on commercial mediation, but I was nonetheless relieved to get my accreditation!

“Since then, I have been through CEDR’s equally rigorous training process to joing their MST Faculty. I have a clear focus on Workplace & Employment mediation, and that is what has also led to my delivering Conciliation of Collective Labour Disputes training on behalf of the ITCILO in Georgia and Malaysia this year.

“All in all, it felt like a serious challenge, but ultimately it has been worth it. My mediation work is now much more widespread, whether it comes direct, through Scottish Mediation or the CEDR Mediator Panel, and delivering the training continues to throw up new ideas and experience that I use both for future courses and in active mediations.

“I suppose it reinforces a phrase I’ve used for many years: if you stop learning, you might as well stop.”

Lessons from staying in the middle

To mediate, or not to mediate, that is the question

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.

Despite that, many employers have been slow to adopt mediation as an approach, often reluctant to put it in place early enough to prevent some situations becoming intractable.  Indeed, it seems to be seen as an option of last resort.

Does this come from a lack of understanding of what mediation is and does? Or is it seen as an unnecessary additional expense? Whatever the reasons, the evidence suggests that it can be extremely successful, at least for those who believe it can be.  ACAS research published in 2012 showed mediation to be significantly more successful where an employer genuinely commits to the process.  Conversely, it is less effective where an employer is reluctant to use it.  It is not unreasonable to conclude, therefore, that the results are to a large extent self-fulfilling prophecies.

The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

In many cases, those trying it have done so with internal mediators. While there are clear benefits from in-house mediators, this approach also needs care to avoid individuals perceiving a mediator employed by their company as being less impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results may not be what might have been hoped.  As a result, internal mediation may not be the appropriate approach in all cases.  Ultimately, the relative costs of employing an external mediator can pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

One conclusion was that one poor result can colour an employer’s view of the value of mediation as a whole.  However, further ACAS research concluded:

more than four in five (82%) [employers] said it had resolved
the issues either completely or partly

A key benefit of mediation is that there is little to be lost in trying it.  In this context, very few independent mediators would hesitate to have a conversation about their approach and to answer any questions that anyone involved might have.  It is better for both those involved and their employer to enter with a genuine commitment to find a mutually acceptable outcome or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

Good Riddance to Employment Tribunal Fees

Well, it’s been a long time coming, but the Cameron Government’s decision to charge fees for people to raise claims in the Employment Tribunal has finally been shown to be illegal.

Created with Nokia Refocus

In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.

Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal.  Meanwhile, across Great Britain, ET applications plummeted by 70%.  In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.

Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating

We want people, where they can, to pay a fair contribution for the system they are using, which will encourage them to look for alternatives.

That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee.

Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation.  This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application.  Although there’s nothing wrong with this in principle, my experience of it wasn’t good.  I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee.  Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.

Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:

The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well.  A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up.  As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented.  This is something that many employers could easily miss.

That principle also filters through to ET applications.  Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.

Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy.  While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.

 

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Taylor Report on Employment – where now?

 We (OK, a few of us) were on tenterhooks waiting for the publication of the Taylor Report into employment practices in the UK, but will it make things clearer or further muddy the waters?

Uber, Deliveroo and Pimlico Plumbers have all been answering legal questions about the legitimacy of a business model that sees them, and other companies, claiming the people work for them are self-employed, so they don’t have to pay Employers’ National Insurance, pension, holidays, sick leave, etc., as their competitors do.  At the outset, Taylor commented that there were areas into which he wasn’t tasked to delve (tax & National Insurance, for example), so it hasn’t, perhaps, been the free and open review that had been called for by many.

There are, however, several aspects that are unlikely to go down well with factions of the Conservative government.  Speaking in May, Taylor said:

“As we encourage people to vote . . . to inform themselves of issues, to volunteer in their community, is it defensible to say that for eight or more hours a day they should accept being ignored, denied information, treated as mere cogs in a machine?”

That could easily be interpreted as a call to reverse moves by the Cameron Government to apply cumulative restrictions to the ability of trade unions to provide that voice.  It could also be that Theresa May’s surprise decision to announce in November:

“…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” 

might actually come to fruition, though there has been precious little mention of the radical reforms of employment law mentioned in the run-up to the general election.

However, it also suggests that implementation of the Information and Consultation of Employees Regulations 2004 (ICER) hasn’t had the impact that it could and should have had.  Certainly, many trade union activists viewed ICER with suspicion, partly because merely informing and consulting can achieve relatively little without scope for negotiation. Similarly, some employers saw it as a way to prevent unions from getting access to their workplace.  However, those opinions have been changing over time, as demonstrated by the TUC’s “Democracy in the Workplace” report from 2014.  There is considerable evidence that employers that actively engage with their staff are more successful than those that don’t:

“Happy and productive people equals growth” (ACAS)

Many were calling for a simplification of the categories, preventing confusion over whether people are employees, workers or self-employed: instead, Taylor seems to be recommending that a further category is introduced, that of “Dependent Contractor”, something more than self-employed, clearly less than a worker, but that is presumably intended to level the playing field.

Quite how the Government will react to the findings is, frankly, anyone’s guess, especially with the level of distraction coming from Brexit, May’s increasingly slender majority, rumoured challenges for the Tory leadership (and, hence, the job of Prime Minister) and Labour apparently surging ahead of the Conservatives for the first time since the General Election, it’ll be a real surprise if they turn to this as a matter of urgency.  But it is the response of Government to these findings that will determine whether or not they make a positive difference for employers and those they employ.

Instead, attention will again be drawn to Uber’s fortunes in the Employment Appeals Tribunal in September.

From where I’m sitting, one answer is in the hands of every employer; improve your working relationship with your staff and, in turn, make the business more productive and more profitable.  That’s an area where I would certainly like to help.

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.