1. What is mediation?
Mediation is a voluntary and confidential process, where an independent skilled person (the mediator) assists the parties to help resolve conflict informally.
The mediator will not give legal opinions or impose a settlement on the parties. Instead, the role of the mediator is to facilitate a discussion between parties to explore whether a solution to the problem can be found. The dispute is viewed as a joint problem to tackle and creative solutions to resolving it will be welcomed and discussed.
In recent months, mediation has been carried out online with great success. Attending a mediation session remotely is easy to organise and participate in.
2. What technology is used?
We will use Zoom, which has become widely popular in recent months and is very simple to set up and use. All you need is a laptop or computer with internet access and camera. You could even use your phone, although we recommend always using a larger device, so that you can see and hear the process clearly.
As part of our service, we will make sure that you feel comfortable with using the Zoom platform before we start the mediation. Alternatively we can use another platform after discussion with you.
3. Why should I consider mediation? What benefits does it have over Employment Tribunal hearings?
- Quicker resolution - Mediation can be arranged quickly and it is possible that disputes can be resolved in one session. Employment Tribunal hearings are usually scheduled many months after a claim has been raised and, as a result of the recent pandemic, there are no in person hearings currently being held.
Online mediation has even more time-saving benefits:- travel time does not have to be factored in so it should be easier to arrange and take less time overall.
- Lower costs - Costs of litigation can be high, often surpassing the value of the claim and are not usually recoverable in the context of a Tribunal hearing. As well as the obvious legal costs, pursuing or defending a claim incurs many indirect costs, such as time absent from work for parties and witnesses, preparation costs, travel and accommodation costs.
Mediation, particularly our fixed fee service, incurs a one-off low cost, which can be shared between parties.
- Confidentiality - Unlike in litigation, parties to a mediation agree at the outset that what is discussed during a mediation is confidential, whether in joint sessions or in private sessions with the mediator. This can result in a more open, real and effective dialogue, which in turn can lead to a faster and beneficial outcome.
- Focus - Mediation can focus on the real issues in dispute and how best to resolve them not just on legal arguments.
- Control - Parties to a mediation are in control of the outcome - they can explore alternative options (not always financial) and determine for themselves which ones they prefer. In contrast, litigation will result in a win/lose outcome and often a financial award for one party.
4. What do I need to do prior to a mediation?
Before starting, we will provide you with an "Agreement to Mediate" which will set out in basic terms how the mediation will work. For example, it will provide that what is said during the mediation is confidential and cannot be repeated outwith the context of the mediation (other than with the consent of parties).
You will also be provided with a short form to complete with details about the dispute. This will be treated as part of the confidential mediation process. Once we have that, we will arrange for an individual discussion with each party in a private session, to find out a bit more about the relevant issues and to test the use of the technology that will be used for the mediation session. Our aim at this stage is to get the heart of the dispute and what it means to each party.
Some basic issues parties should consider prior to mediating are:
- Where will you set up for the session? You should pick somewhere that you find comfortable. It should be a quiet place with no distractions. Have a think about your background too - make sure you don't have anything in the background that you wouldn't want people to see!
- What do you want to gain from mediation? What do you feel upset / disappointed about? What are the key things that are important to you?
Remember that the mediator will not be giving you legal advice. Whether you have legal representation or not, it is therefore important to come to the mediation session with a clear and informed view of what the case is, how strong it is, the costs of running the claim/defence, and the likely value if you win/lose.
- Are there any other parties that should be involved? Do you want someone to accompany you?
- Who will pay for the mediation? Our up-front fixed fee means that parties can work this out in advance and will avoid being preoccupied with racking up costly bills. In some cases an employer will foot the bill, but this will depend on the circumstances of the case. Some parties may prefer to split the cost. You will need to bear the costs of any legal representation.
5. If we reach agreement, what happens next?
The agreed terms will be captured by the parties in a "heads of agreement" document. That document can then be converted into a binding deal, either in the form of a COT3 (with the assistance of ACAS, a free service), or a Settlement Agreement drafted by a solicitor. It will be the responsibility of the parties to ensure that this is done.
6. What if we don't reach an agreement?
This is a possibility. Often, even if an agreement isn't in place at the end of the session, good progress will have been made in terms of clearing up any past misconceptions and expelling bad feeling. Parties might feel that they are moving in the right direction and want to try a further session to see if an agreement can be reached - that can easily be arranged or it may allow for further discussion to take place direct between the parties.
Sometimes, parties conclude that litigation is the preferred option and the fact that they have attempted mediation first will not hinder that.
7. Why choose Morton Fraser?
Aside from our easy-to-use and low-cost service, we are highly experienced in both mediation and employment law. We will guide you through the process and help you feel at ease. Our David Hossack has many years of mediation experience, is on the Scottish Mediation Register and is accredited as a specialist in mediation by the Law society of Scotland. His skill and expertise as an accredited employment lawyer means that he is ideally placed to facilitate a resolution in employment disputes.