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. And this is a key reason why more employers are looking to mediation as an alternative way of resolving disputes with employees.
Those practices that prefer to have their day in front of a judge can expect to pay dearly for the privilege. Solicitors can charge from £3,500+VAT and disbursements to handle an unlawful deduction of wages or breach of contract claim, £8,500+VAT and disbursements to deal with an unfair dismissal claim, and between £6,500 to £9,000+VAT and disbursements to defend a discrimination claim. On top of that is management time in pulling together a defence and any awards made in favour of the claimant.
But, regrettably, some practices do end up defending their actions in an employment tribunal. As searches on the government’s employment tribunal decisions website illustrate, there are numerous cases with references to, for example, optometrist and optician.
Motive to mediate
In describing the process Mali Smith, a legal director and mediator at Wright Hassall, says that it is voluntary, confidential and uses an independent third party to try to reach an agreed resolution.
As Smith outlines, mediators themselves are professionally trained individuals, many of whom are lawyers. She says that ‘mediators do not offer any opinions on the dispute; they are there purely to facilitate a solution by putting a positive interpretation on proceedings to help parties reach an agreement that works for all.’
In her view, this is a far more constructive approach than adversarial court proceedings, which seeks to find for one side only.
The benefits of mediation for employers are substantial. Firstly, costs are, generally, considerably lower than pursuing a tribunal claim. For instance, a day’s mediation can work out at a fraction of the cost of defending 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. And because mediation is a collaborative process, an experienced mediator can often get to the nub of a problem very quickly and agree a more flexible remedy: a financial settlement is not always the only way to reach agreement.
Thirdly, and simply, mediation is confidential. The result is not made public; many judgments end with text that reads: ‘Judgments and reasons for the judgments are published, in full, online at gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.’
Lastly, mediation can save a considerable amount of management time. According to a CIPD survey, employers spend on average six days dealing with an individual disciplinary case, and five days with a grievance. Furthermore, mediation has a good success rate.
With the benefits laid out, Smith is keen to emphasise that a mediator will not advise either party within the mediation. As she says: ‘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.’
In essence, all need to understand the legal consequences of any agreement they make.
As to how the process works, parties are invited to provide a short summary of their case for the other side and for the mediator. They need to agree a suitable venue, which must have at least three rooms and the mediator will circulate a mediation agreement, setting out the terms of the mediation including that of confidentiality.
Each party will retire to their respective rooms and the mediator will move between them, questioning their cases and drawing out the salient facts.
It should be noted that, as Smith points out, there are a number of ground rules that must be agreed to for mediation to work.
These are confidentiality, that the parties have authority to settle, they recognise that the mediator is impartial and independent and accept that the mediator will not offer legal advice or a resolution.
Also, that each party will need to provide a position statement and evidence, ‘will act in good faith, agree that costs are shared by the parties, and that the mediation can be terminated at any time by the parties or the mediator without giving reasons’; and recognise that ‘any agreement reached is binding once signed by both parties and is enforceable by the courts.’
A matter of openness
Because the mediator must remain neutral, any questions they ask will reflect the fact that they are impartial and independent. This means, as Smith explains, ‘that questions will be open and will not allow the mediator to offer a solution; any solution must come from the parties themselves with the assistance of the mediator.’
In fact, she says the technique used by many mediators is to invite parties to attend an open session, which is not compulsory, where they introduce themselves and their representatives.
If the parties are comfortable with each other, the mediator would ask each of them in turn to explain what they think led to the mediation.
After that, groups will break into individual sessions where the mediator will ask if there is anything else they want to disclose that did not come up in the opening session. Fundamentally, Smith says: ‘The mediator will try to focus parties minds on the best way forward while trying to preserve relationships.’
Preparation is key
No one in their right mind would walk into a courtroom unprepared and mediation is no different. Smith advises: ‘Parties should start their preparation with a position statement and evidence that outlines their case and offers a solution that looks into the future.’
From her standpoint, the aim is to reach a resolution so that a compromise is inevitable.
However, she knows from experience that not all mediation leads to a settlement or resolution, but at least ‘the parties at the end of the mediation should know, sometimes for the first time, each other’s position and how far they are willing to go in finding a settlement.
‘Sometimes, after mediation, parties will meet and sign a settlement agreement between themselves. Mediation can lead to “out of the box” solutions that lead to a resolution,’ she adds.
As to how to find a properly qualified mediator, Smith says they need to have undertaken and passed a mediation course by a recognised provider. ‘There are a number of providers recognised by the Civil Mediation Council, such as the Society of Mediators or CEDR.’
Also they must have indemnity insurance.
The profession in focus
A simple search of the government’s employment tribunal decisions website, gov.uk, shows a number of cases of interest to the profession.
It should be said that claimants do not always win. Back in August 2019, in Mrs L Little v AG Wade Ltd, the claimant brought a case for breach of maternity and pregnancy rights, sex discrimination and unfair dismissal.1
Little worked for the practice for three months but was dismissed at the end of her probationary period. She claimed that she was dismissed because she was pregnant.
The respondent, AG Wade Ltd, said that the principal reason for the dismissal was her ‘poor performance and attitude, together with the potential reputational damage to the respondent’s business caused by the claimant’s father’s conviction and imprisonment for an offence of dishonesty.’
This particular matter was made worse by how the practice she worked in was located in a small tight-knit village.
But when cases are won, the awards can be substantial. Consider Mr M Reynolds v Lugton Optician Ltd in April 2019, which involved an unlawful deduction from wages.2 Although the reasons were not given in writing, they were given orally at the hearing, the claimant was awarded £3,937.40.
And in another very short report from an April 2021 case, the claimant, Mrs E Baker, won her claim against Mrs D Burns Optometrist for redundancy.3 No detail on the case was provided here either, but the award in favour of the claimant was for £7,515.60.
Some cases are lost because they are presented too late and are out of time. That was the case in Ms C Webb and Rawling and Sons (Opticians) Ltd, in October 2021.4 The claimant’s case involved disability discrimination but if it had progressed and been won, the award could have been potentially unlimited.
Unlike tribunal proceedings, the mediation process is designed to be flexible, largely informal and something that can be convened at short notice.
Mediation can be used at any stage of an employment relationship or even after it has been terminated. It could be instigated after a grievance has been raised, following a workplace conflict, before or after an employment tribunal claim has been issued.
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.