Mediating Employment Disputes…
In the current economy, more individuals and companies are hoping to reduce costs and increase settlement options while resolving employment disputes. Both employees and employers are looking for ways to keep expenses to a minimum while maintaining the integrity of the process.
Alternative dispute resolution techniques, such as mediation, have become a valuable resource for both employers and employees given the current state of the economy. The unwillingness of both sides of the equation to spend the extra euro on solicitors has lead to an increasing need for mediators trained in employment law.
There are numerous types of employment disputes which can be settled through mediation. Among them include, termination disputes such as unfair dismissals and unfair selection for redundancy, disagreements regarding pay, discrimination claims, disagreements as to leave, disputes concerning non-compete terms, and grievances under a collective bargaining agreement.
Already the Rights Commissioner service put an emphasis on trying to resolve workers’ compensation claims and unemployment compensation claims through a form of informal mediation.
So, why resort to mediation to settle employment disputes?
In some cases the employee may believe that the employer has violated a number of laws. For example in an Unfair Dismissals claim, liability can be significant and it would behoove the employer to find a quick, low-cost method of resolving the dispute. If the dispute should reach the tribunal, a judgment against the employer could be significant, up to twice the employee’s annual salary in damages.
There are other considerations, as well.
A settlement, unlike rolling the dice in court, brings the relationship to an end and creates certainty for all parties involved. In nearly all cases, mediation will be a more time effective and less costly method of resolving a dispute. In mediation, confidentiality is guaranteed, while parties retain their right to representation by a solicitor.
In addition, non-disparagement clauses may be included in mediated agreements. Such clauses are not believed to be within the power of a tribunal or Court to apply to the outcome of a judgment or verdict.
In mediation, a third party neutral attempts to bring the disputants to the common ground of a mutually acceptable resolution. There are numerous upsides for both employers and employees in the meditation process.
The advantages of choosing mediation include;
The parties select a mediator acceptable to both sides;
The mediator’s goal is to broker an agreement, not to reach a particular outcome;
Mediators are ethically prevented from allowing personal bias or opinion to dictate an outcome;
A mediator will not give legal advice; and,
Mediation is confidential.
There are of course downsides to choosing mediation, as well. As a general rule, a mediator is less likely to have a breadth of knowledge of employment law. Certainly, a tribunal officer or rights commisioner will have had more exposure to the employment issues involved in a case such as an unfair dismissals case. There may be a wide disparity in the interpretation of current law.
Regardless, mediation allows the parties to seek the advice of a solicitor at any point. There is no reason to be completely naked and unrepresented in the process. Involving a solicitor remains the right and duty of each participant. In preparing to mediate, I typically ask that the parties or their representation to confer with me in advance of the mediation to agree on the ground rules.
At that point, I expect all parties to be ready to agree to time, place, attendees, fees, interested parties, and anticipated duration. I also ask the parties for any pre-mediation submissions, such as any information which the parties think would be helpful for me to review prior to mediation, I do try to keep this to a minimum as I don’t want to be biased in any way before hearing the parties speak.
A position statements should set forth a party’s opening statement. The parties position based on the facts of the case and the applicable statutory and case law can be included.
Mediation is designed to be valuable to both parties in the dispute. It may be especially valuable to the employer with concerns beyond its damages liability. For instance, it may be advantageous to keep a matter confidential through mediation. It may also be advantageous to the employer to settle the matter quickly, rather than wade through the frustrations of the employment appeals process or worse the equality tribunal!
There are times when an employer wishes to preserve a business relationship through a non-adversarial process of mediation. Of course, the employee may have non-monetary concerns which mediation can satisfy. The employee may wish to ensure a positive reference or some other outside-the-box resolution. The actual tone and tenor of the mediation proceeding often dictate the outcome.
Solicitors are more accustomed to zealous adversarial representation of their client. This combative stance, however, is not helpful as a neutral facilitator. Rather, it is more effective to combine advocacy with a cooperative approach.
While I would never ask a lawyer to stop advocating their client’s position, I would request that all parties be conscious of the other participants’ issues and positions. Here, as with so many disputes in life, the old adage applies, “listen to understand, not necessarily to agree.”
During the process, after the opening statements are made and parties understand the rules of mediation, I will begin a series of break-out sessions. Essentially a series of shuttle diplomacy, I have an opportunity to investigate a variety of options and possible resolutions.
No matter how unusual the request or proposal may seem, a mediate should consider them opportunities to craft an acceptable resolution which both parties will embrace. The aim is to attempt to bring the parties to an agreement on the material terms of the settlement which may include non-monetary provisions.
In the event that a resolution is agreed, all parties ahould sign a Memorandum of Understanding agreeing to all material terms of the resolution. Often, the solicitors can use this document to draft the final settlement document. There is often some back and forth between parties before the final document is signed and as such this may take some time after the conclusion of the mediation.
The Memorandum of Understanding gives all parties a document to remind them of the initial agreement. The Memorandum of Understanding should include all aspects of the final agreement, including any provisions as to legal fees, tax ramifications, costs, confidentiality, and non-disparagement clauses.
Finally, we should include a forward-looking provision which addresses the issue of disputes arising out of the settlement agreement. This gives the parties an avenue for settling grievances which arise as a result of a misunderstanding of the agreement or a failure to follow its terms.
At Employment Matters we help both employers and individual employees resolve employment issues where conflict has arisen or where there has been a breakdown in the employment relationship such as described above.
Sean Ormonde is a qualified mediator accredited with the ADR Group in the UK and Friary Law in Ireland, he is a qualified solicitor and an employment law expert and has recently completed the Law Society’s Diploma in Employment Law.
To find out more about how we can help please log on to www.employment-matters.ie or email us at [email protected] We provide an initial free consultation.