It is a regrettable fact that from time-to-time, employers and employees fall out. Fortunately, most disagreements are resolved amicably, but there are situations where employees feel they have no choice other than to bring a claim in the Employment Tribunal. However, such claims can be expensive and time consuming to defend and as a result, more are turning to mediators to resolve issues informally.
Of course, some employers prefer to argue their way to a ‘resolution’, even if that means going before the Tribunal. However, they face elevated costs in doing so. One law firm charges £215-£600 plus VAT and disbursements to prepare a case before handing over to barristers who make their case in front of a judge. Its junior barristers charge £3,000-£4,500 plus VAT for a two-day hearing; more experienced barristers charge £5,000-£7,000 plus VAT; and highly experienced barristers cost £7,500-£12,000 plus VAT for the same (DMH Stallard LLP 2017).
Beyond that is the cost of any award that an Employment Tribunal makes in favour of the employee should they win their claim.
Defending a claim is therefore an expensive business.
With such costs involved, it is surprising that so many claims do in fact end up before a judge. Indeed, searches on the Government's Employment Tribunal decisions website indicate that numerous cases from the healthcare sector do go to tribunal. At the time of writing there were some 2633 decisions that mentioned clinic, 2186 that involved healthcare, and 8629 that related to medical. Of course, it should be pointed out that a number of these cases are not necessarily relevant – but have one of the three keywords somewhere in the case notes.
When to mediate
In describing the mediation process, Mali Smith, a legal director and mediator at Wright Hassall, says the process is voluntary, confidential and uses an independent third party to try to reach an agreed resolution.
» Employment tribunal claims can be expensive and time consuming to defend, and as a result, more employers and employees are turning to mediators to resolve issues informally «
As Smith explains, mediators are trained professionals, with many being 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 an undeniably better way of working towards a resolution than going through a public court process.
There are many advantages to mediation
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.
Mediation is markedly faster from start to finish. There is no judicial backlog to deal with, and depending on the dispute in question, it is possible for an issue to be resolved quickly. This is because an experienced mediator can quickly get to the heart of the issue and move the communications towards agreement and solution. In fact, the resolution doesn't always involve money – it is often about finding a different or more flexible way of working.
Thirdly, mediation is private with no publication of the outcome. Tribunal decisions are not only published publicly but often come with the warning that ‘Judgments and reasons for the judgments are published, in full, online… shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.’
» Mediation is markedly faster from start to finish. There is no judicial backlog to deal with, and depending on the dispute in question, it is possible for an issue to be resolved quickly «
Lastly, mediation has the potential to significantly reduce management time. Employers spend on average six days addressing a single disciplinary case and five days addressing a grievance, according to a CIPD survey (CIPD, 2020). Beyond that, mediation is often very successful.
How it works
With the benefits laid out, Smith is keen to emphasise that a mediator will not advise either party within the mediation process. 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.’ She adds that ‘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, everyone 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, where the mediator will circulate a mediation agreement that sets out the terms of the mediation. Each party will then 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 mentions, there are various standard procedures that need to be agreed if mediation stands any chance of working. These are confidentiality, that parties have the power to settle, they agree that the mediator is unbiased and cannot offer any guidance; that all ‘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 that each party will be required to provide a position statement and evidence. Furthermore, all recognise that ‘any agreement reached is binding once signed by both parties and is enforceable by the courts.’
The need to be open
The mediator's questions themselves should demonstrate that they are impartial and independent. As Smith explains, ‘questions will be open and will not allow the mediator to offer a solution - any solution must come from the parties themselves with assistance from the mediator.’
In fact, she says that a 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, the 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 that ‘the mediator will try to focus parties minds on the best way forward while trying to preserve relationships.’
Readying the case
Preparing a case for an Employment Tribunal is essential and doing the same for a mediation is just as important. It's understandable then, why Smith recommends that ‘parties should start their preparation with a position statement and evidence that outlines their case and which offers a solution that looks into the future.’
From her point of view, the goal is to get to a point where an acceptable outcome is almost guaranteed. That said, Smith is well aware that that isn't always possible. However, 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.’ She continues: ‘Sometimes, after mediation, parties will meet and sign a settlement agreement between themselves. Mediation can lead to ‘out of the box’ solutions being discussed at mediation that lead to a resolution.’
» Mediators do not offer any opinions on the dispute; they facilitate a solution and help parties reach an agreement that works for all «
When it comes to finding a qualified mediator, Smith advises looking for someone who has taken and passed a mediation course offered by a reputable provider. ‘There are,’ she says, ‘a number of providers recognised by the Civil Mediation Council such as the Society of Mediators or CEDR.’ They must have indemnity insurance.
Conclusion
In contrast to the more formalised Employment Tribunal process, mediation is a simpler, faster, cheaper and a more flexible way of resolving disputes. It doesn't have to be used purely during the employment relationship; it can also be used once an employee has left. It could be instigated after a grievance has been raised, following a workplace conflict, before or after an employment tribunal claim has been issued.
Ultimately, those looking to deal with issues amicably, with a view to preserving relationships ought to consider mediation as a useful resource.
Panel: Employment Tribunal cases involving healthcare
There are numerous cases involving the aesthetics sector. In May 2017, the Employment Tribunal found in favour of Miss E Dixon and against UK Largest Laser Clinic in some of her claims (Gov.uk, 2017). The claimant originally sought an award for age discrimination, breach of contract, disability discrimination, sex discrimination, unfair dismissal, unlawful deduction from wages, and a failure to provide a written pay statement.
However, the Tribunal unanimously ordered the respondent to pay £1,418.55 to Dixon. The award was made up of £218.55 in respect of wrongful dismissal and the failure to provide itemised pay statements, and £1,200 in respect of fees paid. Both sides sought costs from the other but were refused.
The May 2018 case of Ms R Airey v Mr Deib and Innovative Skin Clinics Ltd T/a Supreme Skin saw a claimant with issues revolving around breach of contract, contract of employment, national minimum wage, transfer of undertakings, unfair dismissal, and unlawful deduction from wages (Gov.uk, 2018).
In its ruling, the Tribunal made an award for £4851.10 in relation to a claim for unfair dismissal. The award featured an uplift because of a breach of the Acas Code of Practice on Disciplinary and Grievance Procedures.
And in the case of Mrs Gabriela Hayward v The Bosham Clinic Limited, in October 2020, the claimant sought a judgement that she had suffered age discrimination, breach of contract, and unfair dismissal (Gov.uk, 2020).
While the claim for age discrimination was dismissed, that for unfair and wrongful dismissal succeeded. Her award was for £9500 of which £880 was compensation for wrongful dismissal.