Third person plural


first_imgAs the workload for tribunals continues to grow and new, higher compensationawards tempt even more employees to bring cases, the courts are starting toencourage employers to look at mediation. David Beswick explains how theprocess worksThere is no doubt that employees are now willing to exercise their rightsmore than ever: annual applications to employment tribunals amount to 92,000each year and the number of county court and High Court claims made for breachof contract numbers at least 5,000. And it is likely that these figures are set to grow with the cap for unfairdismissal compensation raised to £50,000 and without a pay-out ceiling forother awards such as discrimination claims and health and safety dismissals. Employers should consider using Alternative Dispute Resolution (ADR) as atool to resolve employment disputes in an attempt to protect themselves fromhuge legal costs. The tribunal was originally set up as an informal method of resolvingemployment disputes. But lawyers have slowly taken over the process, with mostemployers being represented by expert advocates – and to that extent the systemhas failed to achieve its aim. Employers are frustrated by the inadequacy of the traditional litigationprocedures in dealing with employment disputes. In recent years, the Governmenthas acknowledged the limitation of the current adversarial system and, throughthe Woolf Reforms, has changed the Civil Procedure rules for all cases broughtin the county courts and the High Court. The court can now require both partiesto consider mediation before a case proceeds to trial. Employment mediation The function of the employment tribunal is to reach a decision on the issuesbefore resulting in one party winning and the other party losing. The tribunaldoes have the chance of reducing the award for contributory fault on the partof the employee, but not vice versa. There are no plans by the Government tointroduce similar reforms to the tribunal system, which would allow formediation. Types of ADR The two most common types of ADR are arbitration and mediation. Arbitration The Government embraced arbitration in the Employment Rights(Dispute Resolution) Act 1998, when it allowed Acas to set up an arbitrationscheme to decide unfair dismissal cases, where the parties agree to this. Ithas not chosen, however, to extend this to other types of claim, includingharassment. Arbitration is similar to the traditional forms of litigation but in a lessformal context. An arbitrator, who is normally an expert in this area, would beappointed to decide on the outcome of the case. It is mainly adversarial and,despite the way the cases are stated and evidence given, is less formal than intraditional courts. It is run in a similar manner to traditional litigation. Mediation The Government did not set up a procedure for mediation under itsEmployment Rights (Dispute Resolution) Act and this is probably because Acashas already been empowered to “conciliate” in tribunal cases. Acas,however, is extremely busy and it usually results in the organisation being amessaging service rather than mediating. Does mediation work? Recent statistics show that about 86 per cent of all mediations result in asettlement and, as such, do work. Mediation is undoubtedly likely to grow inpopularity and, as a result, it is inevitable that the success rate willdecrease. However, it is believed that the figure will exceed 70 per cent ofall cases referred to mediation. Does mediation replace negotiation? Negotiation is the most economical way of resolving disputes. But they canfail for a number of reasons including: – Emotional antagonism between parties – Distrust of the other party – Failure to communicate common interests – Poor negotiating skills of one or both parties – Unrealistic expectations – Unrealistic assessment of interests – Gamesmanship or brinkmanship. Once the negotiation process has failed, or is likely to be ineffective forone or more of the above reasons, then the parties should consider usingmediation. What is mediation? Mediation is essentially an assisted negotiation by an independent third party– the “mediator”. It is important to understand that the mediator hasno stake in the result other than to achieve a settlement. What are the advantages of mediation in employment cases? Mediation has a number of advantages over the traditional adversarial natureof litigation: – It is a voluntary process whereby both parties can leave at any time. If asettlement is achieved it is owned jointly by both parties. The parties willtherefore feel less aggrieved at the outcome. There are no winners or losers ina mediation. – It is confidential. This is an essential part of the mediation process andhas a major advantage over public tribunal hearings. Often the publicitysurrounding such a hearing is in neither party’s interest. The tribunal canonly make “restricted reporting orders” in sex discrimination cases.In mediation, any information disclosed cannot be used by the other party fortheir own purposes in the subsequent tribunal hearing. – It allows the emotions of the parties to be aired. Most employers spendmore time at work than at home. In this way, the emotions tied into thisrelationship are similar to marriage. It is therefore not surprising that manyemployment claims are driven by the emotions of the parties. Conventionallitigation does not allow this aspect of the dispute to be explored and dealtwith. If a successful settlement is to be achieved, it is very important toresolve the emotional side of a dispute. – It is speedy and informal. With tribunals taking six months to listmulti-day actions, this is an important issue, especially where say, aharassment claim has been raised by an existing employee. – It is more economical than traditional litigation. – It changes the dynamics of the negotiations, from the parties statingtheir positions and relaying their wants, to considering each party’s needs. Inmany employment disputes it is highly unlikely that the fault lies only withone party and in mediation this can be dealt with more effectively than in atribunal. – It allows for creative solutions and not just monetary awards. The obviousexamples include the provision of an apology from a member of staff,re-training staff or moving the antagonists to different positions in theoffice. The mediation process Once it has been decided to use mediation, it is necessary to appoint aspecially trained mediator. Lists of such mediators can be obtained throughyour lawyer and/or organisations such as Centre for Dispute Resolution (CEDR). Depending on the nature of the dispute and the personalities involved, everymediation will have its own character. Nonetheless, there are some basicfeatures that are present in most mediations. Typically, once the parties have selected the mediator, they deliverstatements prepared by their lawyer that set out their positions as to therelevant facts, the legal issues involved and the merits of the claims anddefences. Key documents such as the contract of employment, employee handbook,relevant correspondence and witness statements usually are attached asexhibits. These statements are normally provided to the mediator and to theother side. Confidential matters are sometimes communicated to the mediator in a privateside letter. The actual mediation usually begins with a joint or plenary session at whichall parties are present. The mediator presides over introductions and thenmakes some preliminary remarks explaining the process. This is usually followedby opening statements from each side presented by the lawyer – although clientsare free to speak at this time as well. It is important that the employer isrepresented by somebody who has the power to make decisions on its behalf. At some point, the mediator concludes the joint session and meets privatelywith each side in what is called private caucuses. In these meetings theparties are encouraged to speak candidly with the mediator about theirexpectations and objectives. Anything that is communicated to the mediator inconfidence during these sessions will not be communicated to the other side. Inthese sessions, the mediator may privately share their impressions regardingthe relative strengths and weaknesses of each side’s position and will attemptto identify the key issues driving the dispute and the true interests – asopposed to the positions – of the parties. Eventually a bargaining process begins and the mediator will act as ago-between to communicate proposals. Sometimes the mediator may bring theparties back together for a further plenary session to review the status of thenegotiations. Every mediation is different depending on the mediator’s particular styleand judgement as to how the mediation should proceed. Some mediators areinfluential in that they tend to use stature or force of personality to urgeparties to make concessions. Others are more facilitative, allowing the parties to negotiate freely, onlyoccasionally intervening with a well-timed, guiding hand to keep thenegotiations on track. In fact, most experienced mediators will use aspects ofboth approaches at various times depending upon the particular circumstances ofthe case. The majority of mediations are completed in a day but, like tribunalcases, they can take longer. The goal of every mediation is a binding settlement agreement. Unless thereis absolutely no hope of a settlement, most mediators will not adjourn amediation until the parties have at least signed a binding memorandum outliningthe essential terms of settlement. A good mediator will continue to follow upwith the parties in the occasional case that has not been settled during themediation session. When is mediation appropriate? Mediation is a flexible tool and can be used in many situations, even whereformal tribunal proceedings and/or court proceedings have not yet been issued. In the US, the many benefits of mediating employment disputes have gainedconsiderable momentum. Employers have also become frustrated with theirtraditional litigation system, especially on the West Coast where newtechnology industries are based. As a result, a number of large US employershave mediation clauses built into their staff handbooks and contracts ofemployment which force their employees to mediate before issuing courtproceedings. In the UK, such a clause would not be effective as it wouldcontravene Section 203 Employment Rights Act and its equivalent provisions inthe discrimination statutes. US employers find that mediation is working and delivering the benefitswhich traditional litigation cannot provide. Momentum is building for UKemployers to have mediation clauses in their grievance and disciplinaryprocedures, allowing for mediation to take place either before or aftertribunal and/or court proceedings are issued, where the parties agree to it. Initially, mediation is more likely to be used once proceedings have beenissued, as this is the time parties focus on the issues. In the long term,however, as employers and employees become more comfortable with the concept ofmediation, it will be used before proceedings start. Mediation can be used in all employment dispute contexts. But the followingsituations may be most suited to it, once negotiation has broken down: – Harassment – Bullying – Discrimination (other than harassment) – Performance dismissals – Senior executive severance. The future While new to many employers, mediation is a concept set to become part ofemployers’ tool kits in dealing with employee disputes in the future. Allemployers should consider the possibility of inserting mediation clauses intotheir contracts of employment and/or staff handbooks and train their humanresources teams on mediation procedures. Mediation is also likely to be used asa tool for employee retention when, in the information age, it will become aneven greater issue than it is today. David Beswick is a partner at Eversheds Previous Article Next Article Third person pluralOn 1 Feb 2000 in Personnel Today Related posts:No related photos. Comments are closed. last_img

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