Many, many years ago I was encouraged to submit a high-profile equal pay claim to mediation. We had already won in the Employment Tribunal, but an appeal was threatened and there were going to be extended arguments about quantum even at best. To say that I was sceptical would be an understatement – after all, we had spent the thick end of two years getting to that point and were over £1 million apart from the employer. And yet, after just eight hours in mediation, it was all done – settled in less than a day.
Shortly before the time ran out, but while we were still hundreds of thousands apart, the mediator took both parties away from their lawyers into a room together. When they came out, it was all agreed. And for years afterwards, I wondered – what did he do to them in there? Did it hurt? And by what sort of dark arts had he taken a seemingly unbridgeable gap years in the making and, in less than a day, bridged it?
Since that day, mediation in the employment field has become more common, driven in part by the increasing cost and complexity of legal proceedings and in part by mediation’s inherent advantages of speed, economy and discretion. That is true whether you are well down the path of a Tribunal claim or (perhaps more positively) just in the first twitchings of some internal spat between valued members of your staff. So often, such disputes are based on crossed wires, inadvertence or moments of stress or fatigue. While any decent lawyer worth their salt could swiftly turn this kernel into entrenched positions, terminal acrimony and whopping legal bills, why would you let that happen if you could avoid it? Despite that, mediation is still not as widespread in the workplace as its potential merits should suggest, perhaps because few employers are yet willing to trust a process that they do not fully understand.
Our Relatively Informal Guide on Mediation contains a series of relatively informal insights into the mediator’s art, what to expect if you go to mediation on an employment relations matter, and how to make the best out of it. We will let you know how to tell your BATNA from your WATNA, the role of the precipice and why going into the Insult Zone is less fun than it sounds. The ability to use mediation principles is actually a handy life-skill generally, in fact, though I can exclusively reveal that its non-confrontational, pragmatic and reasoned approach is not remotely effective (indeed, is actively provocative) when applied to teenage children.
