Human Law Mediation Blog: Recent Posts

Recently Emma Harte of Resolution wrote to the Law Society Gazette commenrting on the success of family cout based mediation.

She observed.

"The story ‘Family mediation pilot achieves mixed results’ (news, 7 January) suggested that court-based mediation in the pilot scheme had disappointing results.

Given the context in which these mediations occurred, the opposite is true, and the pilot actually looks like a remarkable success story.

The pilot involved cases that were so difficult they had already reached court and an overall mediation success rate of 79% (28% settled, 24% narrowed dispute, 27% further mediation) is extremely good.

While court may not be the best environment for mediation, these results demonstrate that court-based referrals can and do work.

It is good to see that mediation saved the legal aid fund £10m last year. Mediation also delivers less delay, less damage to family relationships, more empowered outcomes, and therefore even greater savings for the human cost of family separation."

It is good to see a lawyer standing up for her belief in mediation and clearly she has made some good points.. 

Nevertheless is it not difficult to quantify the success rate of mediation?

I see many mediation providers asserting how successful their firm is in resolving disputes.

But is resolution a panacea?

Consider this "successful" negotiation of many years past.

At about 1:30am on 30 September 1938 Adolf Hitler, Neville Chamberlain, Benito Mussolini and Édouard Daladier signed the Munich Agreement.

The agreement was officially introduced by Mussolini although in fact the so-called Italian plan had been prepared in the German Foreign Office.

It was nearly identical to the Godesberg proposal: the German army was to complete the occupation of the Sudetenland by 10 October, and an international commission would decide the future of other disputed areas.

Well, we all know what happened next.

Now if any mediator or mediation provider had successfully negotiated the above matter, you can bet your bottom dollar they would be singing their successes from a rooftop.

But it would not have been right, would it?

Why?

Justin Patten, Mediator

Increasingly Human Law Mediation is dealing with issues relating to elderly workers both in an employment law and a mediation capacity.

My experience of conflict or a dispute is there are some fundamental dymanics which are the same.

You have 2 or more different parties and there is some kind of problem e.g either the Employee has done something wrong or the Employer is just trying to ensure the business makes money and it wants to sack or discipline a member of staff.

You go down some kind of legal route and then you either reach Compromise or a you reach a bitter Court case.   

This kind of scenrio happens in cases involving age, but within age cases there are added edges which both parties need to recognise.

1 Old people to some extent do not receive respect in the society and by extension in the workplace. I have attended events involving lawyers where younger lawyers do not treat older lawyers with much interest or respcet. Hence if I make an effort to speak to a lawyer above 50, it is generally appreciated.

2 Often older executives are fundamentally scared. When I deal with elderly executives they are scarred of losing their jobs because they think this could be their last one of earning at such a high amount. As a consequence it means from their point of view there is more at scope.

3 Legislation is beginning to favour them. The default retirement age which was threatened by the Heyday case is on its last days. With the so called grey vote rising in numbers, no political party is going to alienate elderly workers. As a consequence, dismissing or discriminating an elderly worker is going to become more complex.

There are legal and emotional barriers which need to be dealt with in handling conflict at this level.

Justin Patten, Mediator         

There is an interesting employment law case which has obtained a great deal of interest in the human resources and legal press.

Public sector employees may have the right to bring a lawyer to all disciplinary hearings should their dismissal prevent them from working in their profession in future.

A Court of Appeal decision published last week has opened up the issue as to whether employees have the right to legal representation at internal disciplinary hearings.

The case involved a music assistant at a primary school, who was dismissed by a disciplinary committee following a complaint that he had kissed and had sexual contact with a 15-year-old boy, who was a work experience student at the school.

Prior to his dismissal, the claimant sought several times to be allowed legal representation at his internal disciplinary hearing. However, the local authority's policy did not allow this and the school declined to permit him to bring a lawyer.

But the court found that, because the disciplinary proceedings were "a determinant of the claimant's right to practise his profession", Article 6 of the European Convention on Human Rights applied. 

Now let us be clear about this.

1 Normally the disciplinary and grievance arena has been one where the lawyers stay clear of. My experience that I have tended to get involved at smaller organisations which have what we can call loose procedures.

2 What can be frustrating in dealing with the public sector is their love of procedures and their refusal to engage. Would a lawyer help that in a demanding disciplinary hearing?

3 If you start having lawyers attending the disciplinary procedure, would say an employer respond by getting a lawyer to Chair a Disciplinary hearing?

4 If that were to happen, stand by for more frontloading of legal costs with effectively the Disciplinary Hearing becoming akin to an Employment Tribunal hearing.

5 This gives more incentive to mediate BUT disciplinary hearings are extemely demanding. I query whether this case would be suitable for mediation.

6 This case does not mean that lawyers will be able to attend disciplinary hearings. Iwhere the consequences of dismissal go beyond simply losing a job - ie, they could prevent an individual working in their profession in the future - employers should proceed with caution where legal representation is requested. No doubt lawyers will be arguing this one. 

7 Tactically, I would be careful about being aggressive in asserting this right to attend the disciplinary hearing. Sometimes it is better to let the organisation hash it up to increase the perception that your client is the unwitting victim. Alternatively you can make the request knowing it will be refused. Further ammunition for the pot.

Justin Patten, Employment Lawyer         

According to press reports the TUC will continue to help negotiations between British Airways and Unite. It appears the first walk out from staff will take place from 1st March 2010. 

I have previously written about the dispute.

Quite frankly there are a number of fundamental flaws in the approach to negotiation which make it more difficult for the parties to settle.

These include:

1 Less is more. The parties are involved in continious and never-ending negotiations. This is taking out impetus and respect for the negotiation process. It would be better if all the parties took a break and had 1 long session rather than a series of mini-sessions.

2 The parties are breifing the press. Yesterday I read that both BA and Unite had given their presentation papers to a national newspaper. The downside is that both parties are boxed in by what they say. How can they satisfy loss of face now? Part of their positions are displayed in the public.

3 Inter- Union Splits. Tensions are emerging between the unions as Unite and Balpa, the pilots unions after a number of pilots applied to retrain as cabin crew. On the surface this makes the position of the union weaker but it is an added complication for any mediator. 

Justin Patten, Workplace Mediator           

As a lawyer and mediator there are always on the web some great online resouces to consider.

Some of the best mediation blogs include Settle It Now and Mediation Channel.

Also on the blogs is respected mediator, Amanda Bucklow who also identifies on her blog that she recommends reading The New Lawyer: How Settlement is Transforming the Practice of Law by Julie Macfarlane.

As the preamble to this book observes, the image of the adversarial "client warrior" dominates historical notions of the lawyer. Indeed, a zealous commitment to client advocacy remains one of the core norms of the legal model.

There is something quite macho about being an aggressive lawyer. The question is - Is this effective?

However, structural changes, both in the justice system and the legal profession itself - in particular the shift towards conflict resolution rather than protracted litigation - have rendered the "warrior" notion obsolete.

The new lawyer's skills go beyond court battles to encompass negotiation, mediation, and restorative justice initiatives.

It may be desirable that the end of this warrior type of lawyer exists but sadly many lawyers I deal with continue to take an adverserial approach.

So if I can give my take on the trends in employment law and elsewhere which underpin the hopeful ending of this warrior type lawyer.

1 The overwhelming failure of litigation.Recently I was doing some mediation training for lawyers and one leading lawyer told me that nearly every Claimant that had gone through the litigation process did not have a good psychologoical outcome. In other words the money did not adequately compensate for the stress and trauma of going through litigation. As a lawyer I owe a duty to my client to get the possible outcome including to the client's psychological welfare.

2 The costs of litigation. Litigation is expensive. In my capacity as lawyer I advise my clients to where possible settle cases quickly and on as favorable terms as possible to avoid this expense.

3 Social media and competition is influencing parties and making them more accountable. In a more competitive world parties cannot indulge in a dispute. Litigation can hurt reputation that can easily appear online. Clients really do have better things to do than spend money on lawyers and mediators.

As a lawyer, how can I help manifest change in both my client's and opponent's behaviour quicker?

1 You identify precisely what the client is looking for. As a consequence when the client is saying something to me I am looking for what precisely he or she is looking for. When the client says she wants to sue the organisation, why is she looking to sue? What exactly is she looking to get out the process? Is there something else that she fundamentally needs which is not present within the litigation process?

2 You encourage the clients to tell you their story, In my experience in every dispute there is a story, a pattern, a theme waiting to come out. I want to hear it. From this a possible solution will emerge.  

3  You use different methods of settlement. Within an employment dispute you can offer face to meetings, pre-claim concilation or mediation. You can avoid hostile use of language in correspondence and distinguish between individual's actions and individuals themselves.This gives more opportunities to reach settlement.

4 You can be more open about weaknesses and vulnerabities in your case. A dual purpose is done by taking this approch. It sends a message to the other side that you are serious, you acknowledge that in any case that there are strengths and weaknesses and you are ready to deal with them. It also communicates to the client to be aware of the risks of litigation and reminds everyone what is at stake. You are not caving in or being weak. Frankly you are advocating in a more effective and influential way.  

Justin Patten, Lawyer 

As has been reported, an NHS manager was reecently awarded thousands of pounds in compensation after bullying at the hospital where she worked led her to suffer a nervous breakdown.

Briefly, Nanette Bowen alleged she had been harassed over a three-year period at Llanelli’s Princess of Wales Hospital.

Earlier this year a civil case at Swansea County Court decided her employers were to blame for her health problems.

She will be awarded £150,000 in compensation.

The 55-year-old, from Llanelli, had been employed at the Carmarthenshire hospital for 28 years. She worked her way up the ranks from porter to information manager, reporting directly to the chief executive.

She said her working conditions began to deteriorate in 2000 when Llanelli and Dinefwr Trusts merged to become Carmarthenshire NHS. It is now part of the Hwyel Dda Local Health Board.

She claimed a male official made sexual innuendos towards her and was regularly aggressive when challenged about his behaviour. 

Ms Bowen added that over the next three years her responsibility for hiring staff was removed, she was not allowed to pass on information to staff without his consent and had to fill in a daily form for him to monitor her work.

This is a sad moment for the employer, alleged bully and employee.

All the parties have lost.

There is a dramatic impact on all the parties. 

From Ms. Bowen's point of view she has lost her careeer and her confidence.Like any victim of bullying there is bound to be an impact elsewhere with her relations with family and friends under stress.

The impact may stay with her for the rest of her life.

For any would be bully it is possible his or her reputation will be shattered. The most damaging aspect is any bully does not get to learn the means by which to positively interact with parties.

The employer suffers. It has to make a pay out which it does not necessarily see as its fault. Beyond the pay out and the legal costs, how much time and cost has been spent by the employer?  

What a waste, but it is not necessarily the case that all the parties will learn the lessons from the tragedy of bullying.

As lawyer and mediator when I deal with such disputes, some of the questions which I ask the parties include.

1 What precisely happened to you? In my experience many victims of bullying do not know what precisely happened. Often bullying is subtle by using such methods such as manipulation of holiday schedules, expenses to shatter the self confidence of the victim. Many victims repress what has been done to them.  

2 Is the 1st time this has happened? Some/many(?) victims of bullying have been bullied before. By encouraging would be victims to see if their is pattern in this behaviour it encourages them to see if they can change their behaviour to see if they can fight more effectively.

3 What did you do? I ask this of say, any alleged bully. The purpose is to start encouraging an alleged bully to put their behaviour in the spotlight. many bullies have such self aggrandisement they have never overly shown self reflection. 

4 How does the victim make you feel? Again, we are looking into the mentality of the bully.

5 What has the organisation done? We are questoning the stance of the firm. Does the environment support tacitly the bully or not?

The key is to get the intervention by the mediator sooner rather than later otherwise the employee has no way back into the organisation and then the best case scenario is Compromise Agreement.  

Justin Patten, Employment Solicitor               

Despite the increased interest of mediation within employment lawyers, human resource professionals and their clients, there is still resistance to the use of mediation.

A lot of this can be underpinned by ignorance or lack of experience in use of mediation. One leading employment lawyer told me that he would like to refer matters to mediation but the clients are very resistant.

In addition, there is still a lack of legal incentive to use mediation. The Gibbons Review does represent a wasted opportunity to introduce mediation, but that may change. Around the corner I could see legal incentives introduced to encourage mediation, but that will take time.

The fundamental reason for the employer to consider mediation is that represents an opportunity for the firm to avoid Employment Trununal proceedings.

In 2008/9 for Tribunal Claims and costs awards, the maximum award  was£25,000  with the average award £2,470. The problem was that only 0.2% of Tribunal rulings included a costs awards and even that was low. Even if you do get a costs award against a party it is not likely to cover all the legal costs incurred.

As a consequence irrespective of the merirts of the case and how well either the employer or employee fights it, there is every incentive to settle cases and avoid full blown Tribunal claims and legal costs which generally will not be recoverable.. 

According to CIPD, employers whose HR specialists are trained in mediation techniques have 50% fewer Employment Tribunal claims than those who do not offer such training.

Bringing in somebody entirely neutral to act as a sensible  guide to the negotiation process can be an effective means of resolving dispute.

An employer who uses mediation as one of its tools puts itself in a stronger position with its employees both to identify unreasonable practices and to provide a non-contentious means of resolving disputes.

A mediator can crystallise the problems within the firm before problems become too inflammatory and the case is polarised.

For more information on the benefits of mediation, please click here.

Justin Patten, Mediator

There have been some intriguing reports in the PR/Media press recently with Rupert Murdoch's son-in-law, Matthew Freud delivering a public attack on Fox News output and in particular,one of Murdoch's key Fox employees, Roger Ailes.

Freud said that he was "shamed and sickened" by Fox's journalistic standards and he targeted Ailes in particular.

Roger Ailes is the closest and one of Murdoch's key employees; According to the Guardian on Saturday he earned even more money than Murdoch himself in 2009.

He is largely credited with enabling Fox News to become one of the most profitable elememnts of News Corporation.

Whatever is said, it strikes me that Freud must have had the explicit endoresement of his father-in-law to make such a statement.

It may be that the intention is not to sack Ailes but clearly a message is being communicated to change  his behaviour.    

Former key Murdoch employee and himself sacked by Murdoch, Andrew Neil says "Ailes's days are numbered."

So there we go. A senior employee is at risk of being fired or is being disciplined.

In my experience as lawyer and mediator there are a number of tell tale signs to indicate that you are at risk of being fired.

1 If you are excellent at your job. If you are poor at your job there is a risk that you will be fired, if you are  good at your job, there is less risk. If you are a star performer there is the biggest risk of being fired as your boss may be jealous.

2 If your boss has some kind of psychological flaw. If your boss has some kind of mental issue there is a risk that through no fault of your own your days be numbered. Yoour boss may drive you out exclusively as he has a problem.

3 If you start being frozen out. If you are no longer invited to corporate events or to the boss's for a drink after work these are some of the subtle signs which indicate your time at the firm may be done. The key is that there is a change in behaviour.

4 If your boss has a previous method for sacking staff and it is being repeated. The chances are that your boss has a modus operandi for firing staff. If it is being repeated with you, then beware.

These are some of the signs.

What happens if you ignore them?

Any of the following for starters.

1 You are presented with a letter from your boss warning you that you are at risk of being made redundant The tone is sympathetic but you know your boss hates you.

2 Your loyal PA says that she has seen an email from your number 2 to your boss making critical statements and saying you should be sacked. Apparently your boss has "the issue in hand."

3 You receive a critical email from your boss warning that it is your fault that the business did not make its sales target for the year. The fact that you are being blamed is unfair. 

4 You are suspended from work, walked off the premises on trumped up allegations of gross misconduct.                         

5 You are presented with a Compromise Agreement offering the sum of £70,000 to resign from work. It is less than you want but above any legal entitlement.

Welcome to the fight of your life.

Justin Patten, Employment Solicitor     

One third of UK employees say they have not felt appreciated by their employer during the recession and would leave for another job if they could, according to a poll of around 950 workers commissioned by PricewaterhouseCoopers.

Of those respondents who said their employer had shown appreciation for them in the downturn, 41% said they had no plans to leave as a consequence of this loyalty while just 23% said they would consider leaving regardless.

The findings illustrate the huge potential losses for employers that do not monitor or measure hidden costs such as loss of talent or low engagement.

Sadly employee disillusionment is nothing new and in a way the recession is hiding the true scale of the problem.

The problems manifest in resignation, or poor performance by the worker and ultimately dismissal.

The solution starts with consistent enagement with the staff and the desire to do better. That can lead to training of both management and staff. 

Justin Patten, Trainer

The discussion about legal costs continues. Lord Jackson is due to publish his report later today on his proposals for re-shaping the legal costs environment.

Overall there has been some separate discussion about the solicitors hourly rate within some of the legal press and national press.

The solicitors' hourly rate has received criticism, not least of which because it can promote inefficiency. The central flaw is that it can encourage waste.

Nevertheless despite its flaws, the hourly rate will continue, not least of which because interactions with clients and opponents are unpredictable.

At Human Law Mediation, what we offer are a series of different blended fee plans and solutions.

At all points we offer estimates of projected fees. Due to the unpredictability of litigation in particular these are estimates; the key is consistent client engagement and keeping the client informed of his or her options and what to do. 

For certain legal work we charge an hourly rate on a conventional basis. As we have low over-heads, our fees are competitive. 

For mediation work, we charge a fixed fee with the possibilty of charging an additional hourly rate if aditionnal time is required.

For training work, we provide a fixed fee.

Certain clients who place a stronger emphasis on costs authorise a strict budget which is not exceeded without express prior authority.

So, we offer a series of options depending on the client, the circumstances of the case and the work required. 

However, is this discussion really THAT important?

As a lawyer, mediator and trainer the more I have done this work, the more I have realised that what the client wants above cost control and competence is exceptional client service and the ability to be authentic with the client.

But where do we go for inspiration in our quest to serve our clients?

We can look outside to some of the great work being done on blogs. One of the best law blogs is written by my friend Dan Hull, of What About Clients?

He asks:

• True service to clients: are we delivering this and, if we aren't, can we talk about why?
• Do we lawyers have a “we versus them” or adversarial mentality about clients when our main focus should be doing the job we promised to do and protecting clients from third parties or bad events -- the real “them” -- which would harm our clients?
• Has lawyer camaraderie evolved into such clubiness that we have lost sight of the client’s primacy?
• Do we regularly lie to and slight our clients? (Professionally, is that really any different than cheating on our spouses?)
• Are there built-in barriers which prevent true service to the client? (Are contingency fee arrangements with clients a built-in conflict of interest which can never be justified -- even in the name of “access to the court system?” When we represent insurance companies, are we fair to the real clients -- the insureds?
• Will we ever put the interests of the insureds first?)
• Are lawyer jokes funny to us because they sound like the truth?
• Has the overpopulation of markets with lawyers forced us into a free-for-all?
• Do many of us wind up selling clients short because we are disillusioned or burned out?

These are fundamental and deep questions.

Beyond looking externally, we should look to ourselves.

What exactly are we trying to do as lawyers and mediators? What brought us into this role? Now that we are here - What can we do to help?

These are some of the other questions I ask myself as I search for the best outcomes be the parties lawyers, lay-clients or recepients of training. 

Justin Patten Solicitor, Mediator and Trainer