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

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.

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.

Accredited Mediator

While my previous career involved mediating between various parties on a regular basis, I’d never had my skills in this respect properly reflected through accreditation, so I decided it was time to address that. Thanks to training provided by The Mediation Partnership, I am now accredited mediator.

The training was both interesting and challenging, featuring a number of role play scenarios that were outside of my previous experience and allowed a wide-ranging exploration of approaches and techniques to develop my skills.

The course is accredited by the Scottish Mediation Register.

 

A Port in a storm…

Forth Rail Bridge from Hawes Pier (small)

So, almost unnoticed behind the stramash of George Osborne’s eighth budget, the Government has been defeated again in the House of Lords over it’s Trade Union Bill.  As before, the headlines are all about the impact on Labour Party funding.  As before, the implications for trade unions and workers’ rights to organise themselves and, in particular, campaign about members’ issues have been largely skimmed over, as has the fact that several unions aren’t even affiliated to the Labour Party in the first place.  There’s more to come on this as there is another day of Review (the line by line consideration of the Bill) in the House of Lords, then the third and final Reading.  All of that against a backdrop of several high profile strikes, most of which look, from the outside, like they could have been avoided.

Neither the BMA nor Junior Doctors in England are renowned as militant types, but they see a compromise to healthcare delivery in the revised contracts they are being offered. Jeremy Hunt’s responses have done little to allay insinuations that the changes are as much politically motivated as financially, but then neither side is indicating much room for manoeuvre so it doesn’t look like there’s going to be a simple end to the situation.  Imposition of the new contracts may solve the short term problem for the Government, but it’s hardly going to encourage newly qualified doctors (or anyone else) to view NHS England as an employer of choice.

Meanwhile, Grangemouth is in the news again, this time with a dispute between Forth Ports and dock workers.  In recent years, Grangemouth has become associated with industrial unrest and high pressure tactics on all sides, largely due to the strikes called against Ineos at the Oil Refinery there in 2008 and 2013 and, while this is a different set of workers and a different employer, the rhetoric from both sides seems woefully familiar.

Having only read about these disputes, and having not been directly involved, it’s always difficult to see the full picture, but the common theme seems to be one side claiming they’ve not been consulted, the other side saying they have and that there aren’t any options but the one being presented.  It’s not always simple to understand the subtle differences between informing people, consulting them or negotiating change with them, but it’s nigh on impossible if sides don’t speak to each other.

As with most disagreements, there is unlikely to be complete truth in either position, but it does seem that the parties involved subscribe to different dictionaries and are therefore working to different definitions of many of the terms they are using. That’s not an uncommon situation but is one that, if not addressed, will damage all parties’ reputations and can only be resolved in the long term by both sides being willing to hang up their boxing gloves and start their relationship again. Working out how things got so bad isn’t easy, but is possible – and would be in the long term interests of any business that wants to develop a genuinely healthy relationship with their staff.  After all, a happy staff is a productive staff within which everyone becomes an advocate for their employer.

There’s a truism that any employer will end up with the unions that they deserve, and that unions will end up with the Management they deserve.  That’s always worth bearing in mind as, when the disputes are over, everyone will still have to work together – and surely it’s better to work somewhere that you can have a polite discussion than one where every minor disagreement becomes a major dispute?