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

Training in Copenhagen

At the end of November I delivered a training course on Advanced Negotiation Skills. OK, that’s something I’ve done quite frequently over the years, but this course had a slight difference.  This was the first course I’ve delivered as an Associate with CEDR.

It was wonderful working with my co-trainers: Andy Grossman has been delivering conflict resolution training with CEDR since “forever” (about 20 years) and has a wealth of experience; the third of our team was Phil Williams, a retired police officer who now specialises in delivering training around hostage and crisis negotiation.

Djøf delegates getting to grips with collective bargaining, November 2017

The trainees were all members of Danish organisation Djøf (the Danish Association of Lawyers and Economists), a trade union for lawyers, economists and a wide range of other skilled workers across all sectors.  Trade unions are much stronger in Denmark that the UK, with around 67% of workers in membership.  Indeed, the workforce takes a key role in the strategic direction of many businesses. As such, they operate at all levels of the business and often have a greater buy-in to business decisions than is the norm in the UK.

It was fascinating to see how the delegates worked through the course and embraced different aspects of negotiation. The emphasis was clearly on cooperation and people seemed genuinely uncomfortable even having to role-play situations where they had to hold a line and end up in conflict. Their explanation was that this is the Scandinavian way: being reasonable, finding the common ground and working towards a mutually beneficial outcome are second nature.

While Andy and Phil focused on negotiation theory, behaviour and motivation in negotiation, I focused on the collective aspects of negotiating in a workplace.

Like many unionised organisations in the UK, it’s common in Denmark for there to be multiple unions involved with an employer. To simulate that, we ran role-play scenarios where the delegates had to negotiate towards a pay agreement, given a range of restrictions and contradictions within which to find an outcome.

It was wonderful to see the range of approaches they came up with to present and justify their position, whether they were role-playing management or staff, and the enthusiasm with which they set about negotiating.  Suffice to say, it was encouraging that all of the groups were able to achieve their objectives and came away with a greater understanding of the challenges ahead when faced with real collective bargaining situations.

All in all, from a training delivery perspective, it was a thoroughly enjoyable experience!

 

Malcolm Currie

 

I’d be interested to know your thoughts on the topics 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.

Back to the Future as wages are predicted to stay in the past

In spite of political insistence that the economy is recovering, and has been for a good while, this week the BBC’s Economics Editor has predicted that wages are likely to stagnate for a good while longer.

That conclusion isn’t really a surprise, but it will be a disappointment for many given the extent to which pay has been eroded over recent years – this report from 3 years ago pointing out that real-terms pay is stuck in a time loop at 2004.

“But pay rises haven’t been worse since the Napoleonic wars”

The Office of National Statistics’ Annual Survey of Hours & Earnings isn’t complete for 2016, but many of the draft results don’t make happy reading as far as pay growth is concerned:

  • Adjusted for inflation, weekly earnings increased by 1.9% compared with 2015, an increase due to a combination of growth in average earnings and a low inflation (more on inflation below).
  • Weekly earnings rose 2.2% for full-time workers, 6.6% for part-time workers.
  • The gender pay gap for full-time employees was 9.4% (the gap has hardly changed over the last six years).

Indeed, if you look at the cumulative impacts of pay restraint under successive Governments, the 2008 economic crisis and the seemingly never ending austerity that has followed, some public sector workers may only have seen a real terms pay increase in their lifetime if they have managed to get a promotion – and many have only done so because inflation was so low in 2014/15:

“The gross wages of the median Scottish worker are £1170 lower than if wages had kept pace with CPI inflation since 2009.”

…and that’s before you get into the debate about whether CPI, currently 2.6%, is a reasonable measure of the increased cost of living (most trade unions and many commentators prefer to use RPI, currently sitting at 3.5%, as it includes housing costs).

 

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

Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, 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.

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.

Brexit in the workplace – what now?

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said,  companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK?  Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market.  If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

Here Comes the Trade Union Act 2016 (but is time running out for the union movement?)

DSCN0519So, the Trade Union Act slunk onto the Statute Book on 5th May. We now know what it says, but do we know what it means?

The short answer is “sort of”, but it’s very close to “not really”…

What we do know is that among other things:

  • any industrial action needs to follow a ballot with a minimum 50% turnout
  • ballot papers must make clear the dispute and the action proposed
  • 14 days notice of specific action must be given to employers
  • in “important public services” ballots must also be supported by at least 40% of eligible voters

We don’t actually know as yet when the provisions will come into force, but there are several other uncertainties at this stage as well.  For example, it has yet to be defined which public services are deemed “important”, though we can probably predict that it will include Health and Education.  Furthermore, as with all laws, the final impact will be shaped by cases that go through the courts so, with questions remaining on the impact of this legislation on workers’ human rights, there may be uncertainty for some time.

What is clear is that the impact in the devolved administrations will, for the foreseeable future, be minimal as the Governments in Scotland, Northern Ireland and Wales have all said that they won’t be implementing the provisions of the Act. So what can we expect to see in England?

Well, the intention behind the Act is clearly stated as making it more difficult for trade unions to take legal industrial action, particularly in what are being called “important public services”. This seems to have been a response to disputes in recent years where some unions have proceeded to industrial action with significantly lower turnout than is now being demanded.  A collective breath of relief will have been taken amongst all unions that the threat to allow employers to hire agency staff to complete strikers’ work was dropped from the final legislation.

The Government has recently taken a bloody nose in relation to it’s plan to do away with “check-off”, the mechanism by which union subscriptions are paid direct from people’s salaries, in spite of that system having little or no cost for employers.  Having now established through the courts that DWP’s implementation of that approach was unlawful, the Government now risks claims for compensation from the unions that have been affected.

The unions had responded through consultation on the Trade Union Bill that it was unreasonable to dictate the levels of turnout while the Government insisted that they continue to conduct ballots by paper and post.  In that context, it’s interesting to note the concession that there will now be an independent review of electronic balloting.  In spite of that, it is also worth highlighting that there have been many troublesome disputes, notably the ongoing one with Junior Doctors in England, where the turnout has significantly exceeded those imposed by the new strictures.

Given that, it remains the best approach for employers, especially those who are not bound by Government instruction, to work with their staff, including the unions where they are present, to make sure they avoid the dispute in the first place.