Mediation Services

Mediation

Mediation is a confidential process, allowing for an open discussion of all the relevant issues in a dispute. It enables parties to talk openly to each other without prejudice to any legal proceedings. Legal rights are retained throughout the process. It is a forward looking process that works to find a solution that all participants can agree to, allowing everyone to move on. Critically it can bring an end to the stress, time and expense which is being invested in the continuing dispute.

For an informal discussion about the use of mediation in relation to any dispute which is affecting you, your client or your organisation, please call Kathleen Bolt. We are happy to have a preliminary discussion about whether mediation will be appropriate for your needs and to discuss how best to progress matters thereafter. We are also willing to approach the other potential participant/s about the possibilities of mediation if this is felt to be helpful.

Costs
While the costs of mediation are normally divided equally between the participants, in a workplace mediation it is normally the case that an employer will decide to meet the full costs of the mediation to enable the process to proceed. Where matters have moved to the Employment Tribunal then this might be something that the Respondents (employer) would want to consider. It may be that insurers will be willing to meet the outlay where the employee or employer’s costs, in relation to a dispute, are being met by insurers. This does not in any way impinge upon the independence of the mediator who adheres to a Code of Conduct which requires absolute impartiality. The same view may be taken by others who wish to consider the use of mediation to resolve a dispute and where there is a financial imbalance between the parties.

Guide to Mediation

Mediation
Mediation is used to bring people together who are in dispute to help them resolve their issues. It is an entirely confidential form of dispute resolution which involves an independent, impartial person ( the mediator) helping two or more participants reach a positive solution acceptable to all parties. The focus is on restoring relationships and moving forward rather than focusing on the past. These relationships can be between individuals, teams, or, at an organisational or commercial level. Mediation also allows for the termination of relationships in a confidential, amicable and constructive way if appropriate.

What can mediation deal with?
Whenever conflict occurs, it damages motivation and morale, it creates distrust and suspicion, it demands emotional energy and valuable management time, and it costs money. Conflict can arise for many reasons.

In the workplace -

• perceived discrimination
• perceived unfairness
• incompatible working styles
• conflicting personalities
• ineffective communication
• inappropriate management styles
• concerns about capability to do the job
• concerns around absence from and return to work
• recognition of disability and the need for reasonable adjustments

In the provision of goods and services –

• perceived discrimination
• poorly delivered services
• failure to pay for goods or services
• disagreement about terms of delivery
• perceived failure of public authorities to consider the needs of minority groups when planning and reviewing policies and services

When can mediation be used?
Ideally mediation will be used in the early stages of a dispute. Where formal procedures have already begun, they can be put on hold to allow mediation to take place. Mediation can continue to be used at any stage after employment tribunal or court proceedings have started. It is entirely without prejudice to any legal rights and proceedings. Solicitors, Counsel and trade union representatives can attend.

Why consider mediation?
Whatever the issue, mediation is a quick and cost-effective way of resolving things. It allows participants to come to an agreed and confidential resolution of their differences and to take control of the outcome of the dispute. Mediation is not a soft option. Nor is it a form of counselling. Mediation requires commitment from all participants. Mediation necessitates listening and learning. It allows people to acknowledge their differences, to give recognition to concerns, and to devise better ways of working, without prejudicing legal proceedings. It can restore and repair relationships whether commercial or with colleagues. It allows for creative solutions and an agreement that may be outwith the powers of the courts and tribunals.

What does mediation involve?

Mediation Meeting
Mediation typically involves a mediation day when participants will meet with the mediator to explore concerns and work together to find a solution/s to their differences. However, preparation before the mediation day is critical, and often the key to the success of the mediation process. It is a very flexible process that can be adapted to meet the needs of participants.

Preparation
It can often be useful to have pre meetings with individual participants prior to the mediation day, particularly in workplace disputes, in order to ensure everyone understands and agrees to the procedure, and to enable the mediator to gain an understanding of the concerns of each participant in advance of the mediation day. In employment disputes (those disputes already in the Employment Tribunal) and other legal disputes, participants provide the mediator with a summary of the issues, and any relevant documents in advance of the mediation day. Again a pre-meeting or telephone conference can take place with the participants or their legal representatives to discuss and agree preparation and arrangements.

The appropriate format for the day and pre-meetings will be given careful consideration in each case. The process can be stopped at any time. No -one is forced to do or say anything they are not comfortable with.

Participants
The participants to the mediation will always need to attend the mediation meeting. Where the participant represents an organisation- voluntary, public or private, then it is essential that someone with the authority to reach agreement attends.This may be with the support of one or two other individuals. An individual participant may wish to bring someone along to support them through the process. Legal advisors, including Counsel, and trade union representatives are also able to participate in mediations. In each case it is wise to consider what participants can contribute to the day and what will best aid a forward looking approach to the resolution of differences on the day, as well as ensuring that participants have sufficient support and advice available to them.

What's different about mediation?

We understand that solicitors, clients and trade unions are used to an adversarial system of dispute resolution. We understand that not every legal or potential legal dispute may be considered suitable for mediation by the parties or their representatives. We also understand that the legal process , the assessment of legal rights and liabilities, and the ability of parties to ultimately pursue and defend matters through our Courts and Tribunals underpins the ability to consider mediation in many cases. However we know that ending up in the court or tribunal should be an option of last resort. We also know that solely relying on the traditional methods of dealing with differences between parties can be lengthy, expensive and at times, unsatisfactory. In a system based on winners and losers, parties spend time looking back rather than forward; on questions of proof and defence, rather than resolution and moving on. We all have experience of how difficult a ‘day in court’ actually is for all involved, and know that the experience rarely offers parties an opportunity to really express what they think and feel about their dispute. Relationships can be badly damaged, particularly where there is an ongoing employment, customer, organisational or commercial relationship to be maintained now or for the future.

Mediation is a confidential process, allowing for an open discussion of all the relevant issues in a dispute. It enables parties to talk openly to each other without prejudice to any legal proceedings. Legal rights are retained throughout the process.

Risk Management
Finding opportunities to manage and resolve disputes and differences through the use of mediation principles can be good risk management. With the statutory rights of both parties unaffected, it might be said that there is little to lose, and much to be gained.

It is for all those reasons that we recommend that mediation is always considered when disputes arise.

Workplace Interventions

Workplace interventions are a proactive and positive approach to dealing with health and disability related difficulties in the workplace. They are based on the principle of early intervention, but can be used at any time, following the absence or anticipated absence of an employee from the workplace. They can also be used following the diagnosis of a condition, illness or disability that may impact upon an employee’s future ability to carry out their job.

Workplace interventions involve an independent assessment of the employee’s functional capacity (ability to carry out key aspects of their job) by a specialist work accredited occupational therapist. This is a systematic assessment of the relevant physical and or mental capabilities of the employee as matched against their job. This provides the basis for a constructive discussion between the employer and employee with the assistance of that assessor to agree a way forward in the workplace or a planned return when appropriate. This can sometimes take the form of a vocational rehabilitation plan.

Where it becomes apparent that an employee is no longer capable of carrying out their job, despite any appropriate adjustments, then parties have the benefit of knowing that all reasonable steps have been taken to enable the employee to continue in employment.

This service brings together a unique combination of employment law expertise, specialist work accredited occupational therapists and the use of mediation skills to assist in resolving disputes and difficulties around health, wellbeing and disability in the workplace.

We will work with both the employer and employee to understand the reason or potential reason for absence from the workplace, and the impact on the business. We will use our expertise to determine what the employee is actually capable of doing or not doing. We will determine whether we consider that the employee should be treated as having a disability under the Equality Act 2010 (previously the Disability Discrimination Act). We will use our knowledge of mediation skills to facilitate dialogue between the employer and employee to determine when and how the employee can return to or remain in work. We will work with the parties to consider what adjustments might be required where the person has a disability, or where it is considered that they would be fit to work with some assistive measures. Where required, any agreement reached between the employee and employer, can be overseen to aid its implementation. It will sometimes be helpful to draw up a vocational rehabilitation plan. It will often be sensible to build in a review period to ensure that the agreement is working to meet everyone’s needs.

We believe that this innovative approach is a quick and cost effective way to proactively manage absence from the workplace, or prevent absence in the first place. Interventions can quickly breakdown misperceptions about capabilities and motivation and work to put in place practical solutions. Where absence is anticipated due to the diagnosis of a condition, illness or disability support measures limiting absence can be agreed at the outset. Employees feel supported and employers are given practical assistance in making effective management decisions.

For an informal discussion about the use of a workplace intervention in relation to any issues around health and/or disability which is affecting you, your client or your organisation, please contact Kathleen Bolt. Enquiries are encouraged from both employees and employers, or their representatives. This includes trade union representatives. We are happy to have a preliminary discussion about whether a workplace intervention will be appropriate for your needs and to discuss how best to progress matters thereafter. We are also willing to approach the other potential participant/s about what is involved if this is felt to be helpful.

Costs
While the costs of a workplace intervention could be met equally between the participants, it is likely that an employer will decide to meet the full costs of the intervention due to the financial imbalance between the parties. This does not in any way impinge upon the independence of our assessors or our commitment to work impartially with both parties to find a resolution. It may be that insurers will be willing to meet the outlay where the employee or employer’s cost , in relation to a dispute, are being met by insurers. Our occupational therapists adhere to their professional Code of Ethics and Professional Conduct and this requires that assessors exercise their independent and professional skills in assessing work capabilities. The therapist may offer suggestions and possible solutions arising from their professional expertise. If they do so, it is to aid dialogue between the employer and employee. Any final outcome, whether in the form of a vocational rehabilitation plan, or written agreement, must be agreed by both parties.

Guide to Workplace Interventions

"Deciding when and whether an employee retains the ability to engage in key work duties and activities of daily living that surround the work role and at what level, can be a crucial determination in employment situations"

What is a workplace intervention?
Workplace interventions are a proactive and positive approach to dealing with health and disability related difficulties in the workplace. They are based on the principle of early intervention, but can be used at any time, following the absence or anticipated absence of an employee from the workplace. They can also be used following the diagnosis of a condition, illness or disability that may impact upon an employee’s future ability to carry out their job.

Workplace interventions involve an independent assessment of the employee’s functional capacity (ability to carry out key aspects of their job) by a specialist work accredited occupational therapist. This provides the basis for a constructive discussion between the employer and employee with the assistance of that assessor to agree a way forward in the workplace or a planned return when appropriate. This can sometimes take the form of a vocational rehabilitation plan.

What does a workplace intervention achieve?
The intervention provides the means for dialogue between the employer and employee (and their representatives) to address these health issues together. The aim is to enable employees to return to the workplace at the earliest opportunity, or even to prevent absence from the workplace. Where it becomes apparent that an employee is no longer capable of carrying out their job, despite any appropriate adjustments, then parties have the benefit of knowing that all reasonable steps have been taken to enable the employee to continue in employment. Employees feel supported and employers are enabled to make good management decisions.

Where there has been any dispute or difficulties arising out of the conflicting needs of the employee and the employer, around the management of health and wellbeing, a workplace intervention can be an effective means to resolve these matters quickly and cost effectively.

What’s different about a workplace intervention
Proactively addressing mental and physical health issues in the workplace, is the most successful way of returning an employee to work or determining work capabilities. It reduces sickness absence, and associated costs, while increasing productivity and performance. Making decisions about health and disability requires careful assessment, thoughtful evaluation and a response that is both expert and practical. Our specialist occupational therapy input together with our expert knowledge of employment and discrimination law enables us to fully understand all the complexities involved in determining and managing an employee’s functional capacity in the workplace. Our approach draws on the use of mediation skills. The impartiality and independence of the assessor is key to building trust and confidence with both the employer and the employee. This brings everyone’s concerns to the table and encourages solution focussed dialogue, moving to an agreed outcome and actions.

The work intervention may assist to break down barriers and misperceptions about work readiness, skills, capabilities and motivation; and aims to provide practical solutions. Where the employee may have a disability in terms of the Equality Act 2010 (previously, the Disability Discrimination Act), we work with both parties to determine any possible disability and to assess and review any reasonable adjustments that might be made.

Levels of service
The service required will vary depending on the complexity of the case, the nature of the health issues, or the length of absence from the workplace. In some cases an opportunity to speak to the employer and the employee separately, including a basic assessment of the employee’s functional capacity , provides the necessary understanding of everyone’s needs as well as the specifics of the job. A further joint meeting, facilitated by ourselves may be all that is necessary to arrive at an agreed solution. In more complex cases it may be necessary to carry out a full and detailed independent assessment of the employee’s functional capacity (ability to carry out the key aspects of their job and activities of daily living) before determining their capabilities, and fitness to undertake their job. A visit to the workplace may also be required.

Benefits of a workplace intervention
Employees returning to or remaining in the workplace are helped to overcome physical, behavioural or environmental barriers, and gain a clear knowledge of their capabilities as matched against job demands. Employers receive assurance that the employee is competent to perform the essential functions of the job and has the necessary work readiness skills. Both parties are assisted with modifications and / or reasonable adjustments when appropriate. Conflict; including grievances, complaints of disability discrimination, and disciplinary capability proceedings may be reduced and resolved, adding to the wellbeing of all involved.

Instructing a workplace intervention can be a valuable and cost effective investment.