Category Archives: Mediation

Musings on the uses of mediation to settle disputes

Far reaching changes to Employment Tribunals are imminent


Far reaching changes to Employment Tribunals are imminent

The launch of the “resolving workplace disputes” consultation by the Department for Business,  Innovation and Skills (BIS) is described as being the next step in the Governments comprehensive review of employment laws. In reality the consultation sketches out a roadmap to fundamentally change the current tribunal system into a more business friendly model.

Proposals include: charging fees; increasing the cap on costs awards; increasing the level of deposit awards; and removing payments for the expenses of witness. These proposals will not go down well with Claimants and Unions alike; who will no doubt view them as putting barriers in the way of access to justice.

Some of the wide-ranging consultation proposals will be welcomed with open arms, including:

  • Encouraging parties to resolve disputes earlier (through ACAS, and implicitly through mediation);
  • Making strike out powers more flexible, with “procedural safeguards to be built-in;
  • Allowing Employment Judges to be able to issue a deposit order at any stage in the proceedings;
  • Introducing a mandatory requirement for claimants to provide a statement of loss in the ET1; and,
  • Shortening tribunal hearings by taking witness statements as read.

 The more controversial aspects of the consultation include:

  •  Introducing “fee charging mechanisms”. This is not set out in any detail however, the consultation includes the example of “where claimants lodge claims (and respondents choose to counter-claim), and/or for parties in claims that proceed to full hearing”. It does not seem to be envisaged that any fee will be charged when a Respondent submits its ET3.
  • Extending the qualifying period for unfair dismissal claims from the current one year to two years. The Government estimates that this will reduce the level of claims by 3,700 – 4,700 a year.
  • Introducing Legal Officers to deal with case management. The consultation seeks views on the “qualifications, skills, competences and experience we should seek in a legal officer”. 

 Lawyers and HR practitioners should note that the consultation also seeks views on the type of interlocutory work (which the consultation considers “could be undertaken by any competent person”) that might be delegated, so clearly this proposal will be expanded.  Under the proposal Legal Officers could be: experienced administrative officers; qualified lawyers employed as registrars or legal assistants; or a ‘junior’ rank of judge or judicial officer.

  • Introducing a rule whereby either party can make a formal settlement offer to the other party, or parties, as part of formal employment tribunal proceedings, “backed by a scheme of penalties and rewards”. The consultation proposes a system similar to the “Scottish Courts’ judicial tender model” (see how many English practitioners put that search term into Google!), and not a Part 36 model.
  • Removing payment of witness expenses. The Governments argument is that this will lead to a reduction in the duration of some hearings, as “only witnesses that are strictly necessary will be called”. Surely it is simply intended to save Government money. It is unlikely to be the main consideration for witnesses I would suggest that a greater deterrent to witnesses attending a tribunal hearing would be the necessity to take time off work to give their evidence.
  • Increasing the current cap on the level of costs that may be awarded from £10,000 to £20,000. The consultation emphasises that “it is not our intention to move towards a general costs-recovery policy”.
  • Reviewing the formula for calculating employment tribunal awards and statutory redundancy payment limits.
  • Increasing the current level of the deposit which may be ordered from the current maximum of £500 to £1000.
  • Extending the jurisdictions where judges can sit alone, allowing “more efficient use of lay member resource” – (it is noteworthy that this is not defined).  Subject to discretion, unfair dismissal cases to normally be heard by an employment judge sitting alone.

This may lead to a two tier level of tribunal judges, and does little to address the reality that many unfair dismissal claims often feature as just one strand of several claims. The annual statistics published by Tribunal Service show that for 2009-10 the average number of jurisdictional complaints per claim was 1.7. Could this be the beginning of the end for lay members?

  • Proposing that claimants submit key details of their dispute (using what will amount to a shortened version of the ET1 claim form) to ACAS within the relevant time limit.

It is proposed that ACAS will have no role in determining whether the claim is in time or not; they will, however, date-stamp the form on receipt, and that will then allow the Tribunal to decide whether to accept or reject the claim.  This dual process is likely to confuse many businesses.

The consultation envisages that the clock (for the relevant time limit) will stop once the claim is received by ACAS and that there will then be a statutory period of time (they propose 1 calendar month) for ACAS to attempt to conciliate the dispute.

Resolving disputes

The amount of claims lodged at the Employment Tribunal for the period 1 April 2009 – 31 March 2010 show that there has been a 56% increase in claims from 151,000 for the period 2008/2009 to 236,100 claims in 2009/2010; although it should be noted that those figures include multiple claims.

The role of ACAS

The aspiration in the consultation to urge employers and employees to work together to resolve workplace disagreements should be welcomed. Work place mediation will most likely be an area of real growth. The role of ACAS should rightly be heralded as a successful way of resolving disputes, as 70,600 claims were ACAS conciliated last year. 

The Government intends to give all potential claimants with access to pre-claim conciliation by ACAS – free of charge to all those who want it; and for ACAS to give claimants with information about what they can expect from a Tribunal, including the time involved and what a tribunal might award.

The key issue will be whether ACAS has adequate resources to deal with a likely surge in demand. Perhaps the proposed tribunal fees will pay for the service to be expanded? In my own busy employment practice it is increasingly clear to me that ACAS case workers have an almost insurmountable level of cases to deal with.

Philip Henson. Partner, Bargate Murray, and accredited mediator specialising in work place mediation.

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Filed under Ch ch ch changes, Costs, Discrimination in the work place, Employment Tribunal Focus, Government proposals, Legislative Changes, Mediation, Politics, Trade Unions

BAA/Unite discussions and the need for further dialogue


In September I was interviewed on Sky News commenting on the discussions between BAA and Unite the Union, which took place under the auspices of ACAS at an undisclosed location.

 Many critics have opined that Unite may be taking a more militarist view on strike action, and have questioned if they are prepared to threaten strike action that could have resulted in the closure of six airports over a 1 % (or 1.5% depending on who you speak to) pay increase what will they do when the cuts to the public sector are ushered in later this year?

 Was the strike threat (and notably the reluctance to confirm whether any strike action would fall over the August bank holiday weekend) perhaps part of a sophisticated strategy to demonstrate that they are a force to be reckoned with as the sword of Damocles starts to hover over the public sector?  I am curious whether the strike threat was a sign that the biggest Union in the UK and Ireland was dipping it’s toe into the sea of unrest to test the waters for further industrial action.

 We should also question in what circumstances the public will support future industrial action. I would suggest that the majority would support Union members who propose to strike over fears about their working conditions and public safety, such as the action proposed by the RMT Transport Union over conditions on the London underground. In contrast the battle for hearts and minds may be difficult to win over a pay increase (no matter how small); especially if hardworking families who have waited to find last minute holiday deals discover that their travel plans may be hampered.  It is imperative that we recognise the categories of staff who were balloted for the industrial action. We are talking about security staff, engineers, fire-fighters and support staff at BAA’s six airports, and these important workers are integral to the aviation industry, specifically in relation to security, and they should be listened to. 

 In my view we have to be careful not to venture into the realms of Union bashing, as the Unions carry out an important role, particularly by publicizing important issues which affect their members. For example, Unite are currently promoting a campaign to try and prevent baggage handlers in the aviation industry suffering from muscular skeletal injuries, and the RMT Union are raising awareness of safety concerns on the Tube tracks.

 For further comments on this issue please follow this link to my article published on politics.co.uk.

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Court closures – Is Mediation the way Forward?


The Ministry of Justice has recently published several consultations which ask for views on whether to close 103 magistrates’ and 54 county courts that are deemed to be “underused” and “inadequate”.  The purpose of the consultation is to “modernise and improve the use of Courts in England and Wales[1]”. Read into that what you will.

Each consultation is divided up into separate geographical areas. The proposal for London is to merge the 28 existing Local Justice Areas into just 9, and to replace the current 20 outer London youth panels, and the Inner City Youth Panel, to just 9 Youth Panels. The arguments set out in favour of closure highlight the state of the Court buildings themselves and explain how existing court work loads may be redistributed.  For example, Acton Magistrate’s Court is described as being “104 years old and not fit for purpose[2]”, and it is recommended that it should close and its work be listed across other West London Courts. If the planned closures come to fruition then it will inevitably result in more pressure being placed on the surviving courts. 

But will the proposed closures and cuts stop there? I think not. I predict that the scythe will continue to cut this year, and beyond. The Ministry of Justice has been told to save £325m, and that gargantuan sum surely indicates that the pain is going to be spread around. The Tribunal Service is an Executive Agency of the Ministry of Justice and may be the next in line.  The business plan for the Tribunal Service[3] refers to an ongoing Performance and Efficiency Programme (PEP) requiring it to deliver a total of £8.2m in savings during 2009-10, rising to £12.4m in 2010-11.  

I predict that a direct consequence of these cuts will be that solicitors will increasingly consider the other weapons in the dispute resolution armoury; rather than using the traditional, court or tribunal system.

As we all know many litigants become fixated on having their ‘day in Court. Although once you have provided your client with a detailed breakdown of your likely costs (and you have explained the procrastinated time frame to even be listed for a hearing) their appetite for Court room battles may dissipate. I remain puzzled why mediation is not being embraced by more law firms and promoted to clients.

How many organisations would not jump at the chance to end a long running dispute quickly and cheaply without having to set foot into a court or tribunal? No client is going to thank you when they receive an invoice for several thousand pounds for litigation costs, if they do not obtain what they perceive as a fair result. Some workplace disputes may be resolved by getting the parties together in a room, allowing them to air their concerns/complaints and exploring their feelings; (bear in mind that this is frequently the first time that this has happened.) Consider this scenario during a workplace mediation: one party offers to apologize to the other, which is accepted, and the two parties then discuss ways in which they can work together more effectively, and their relationship is restored. No vicious personal grievance letters, no lengthy investigations into alleged misconduct, no costly litigation, just an early resolution. (Bliss!).

Mediation is especially effective if used early, before parties become entrenched in their positions. It can allow issues to be nipped in the bud.  In the context of workplace disputes it can be used in any situation from a disagreement between senior managers and support staff, threatened legal action, to conflicts with third parties such as office suppliers.  Mediation has a particular resonance in the workplace, and the process has already been embraced by BT plc, West Midlands Police, Salisbury Cathedral and the Ministry of Justice to name but a few.

A guide jointly produced by ACAS and CIPD[4] includes some poignant examples of how mediation has helped to resolve disputes in the work place, and indeed how it can be implemented. It is essential reading. Even cases sometimes considered to be poor candidates for mediation – such as personal injury claims – are in fact suited to it.

What is mediation and why use it?

Mediation involves a neutral third party bringing two sides together with an aim of facilitating an agreement. The process is flexible, and inexpensive when compared with litigation. The parties set out their concerns in opening statements and the mediator will then speak with each party in separate caucuses to explore the issues with the intention of reaching a solution which is acceptable to both parties. If an agreement can be reached the terms will usually be recorded in a mediation agreement, drafted by the mediator, and signed by the parties.

The influential report on the future of Civil Litigation published by Sir Rupert Jackson, in January 2010, drives home the pro mediation message when he opined that:

Alternative dispute resolution (“ADR”) (particularly mediation) has a vital role to play in reducing the costs of civil disputes….ADR is, however, under-used…”[5]

We have found that mediation works in a variety of cases, from complex commercial matters (involving large sums of money) and workplace disputes, through to smaller property claims and partnership disputes.


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ACAS/TUC mediation guide for Trade Union representatives


On an almost weekly basis we hear the foreboding news that cuts to the public sector will bring co-ordinated industrial action and civil unrest.

However, it’s not all doom and gloom as a recent joint announcement by ACAS, the employment relations service, and the TUC espouses the virtues of mediation, and may point towards a new approach to resolving disputes by the union movement. 

ACAS and the TUC have published a new 18 page guide[1] for trade union representatives which explains how mediation can compliment their role in helping to avoid costly disputes.  The introduction points out that whilst not offered as a panacea mediation can offer a way to avoid the potentially disruptive effects of drawn out conflict.

The new guide explains:

  • What happens during a mediation,
  • The role of representatives in a mediation and how to support members,
  • How to work with employers to set up mediation arrangements,
  • How mediation fits with other workplace procedures and agreements, and, 
  • How Trade Union representatives can act as mediators.

A culture change?

The Chair of ACAS, Ed Sweeney, noted the change in direction, when he opined: “In the past there has been some reluctance to use mediation within the union movement as it was seen as a possible barrier to justice. Despite some apprehension, we are increasingly seeing evidence of trade unions recognising the benefits it can bring to their members.”

Philip Henson, comments:

Whilst I am pleased that the virtues of mediation are being promoted by the TUC and ACAS, unfortunately the new guidance sends some mixed messages. The comment that “it [mediation] can also be used to rebuild relations after a member of staff has been through a disciplinary or grievance process”, points towards mediation being seen as a tool for reconciliation after each disciplinary or grievance process. Whilst in a Utopian world that might be an ideal way to restore the relationship between the parties, mediation should not be an automatic add on to the end of the existing grievance and discipline procedures (as can be inferred) as such a proposal would bring an unjustifiable amount of pressure on management time and resources; particularly for any SME’s who do not have a dedicated HR function.

I also find it difficult to reconcile the declaration that mediation can be used “at any point in the conflict cycle”, with the comment later in the guidance that “it [mediation] should only be used where agreed procedures have been exhausted or the parties agreed to put them in abeyance”, which appears to indicate that mediation might be seen as a process of last resort.

Furthermore the declaration that mediation is “morally binding and has no legal status (unless the parties so desire)”, does not clearly explain the benefits of setting out the fruits of the labour of the mediation in an agreement between the parties.

The section “can trade union representatives be mediators?” promotes the skills of trade union representatives to employers who are looking to recruit internal mediators. It continues that where trade union representatives do act as mediators they should “avoid mediating for individuals who they also represent”.  In fact what they should clearly be stating here is that if you are a mediator and you are asked to mediate in a dispute involving an individual that you already represent then you will not be able to act as a mediator as there will be a clear conflict of interest.


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