Litigation v mediation in the workplace: why what, when

My experience as a litigator and mediator

After litigating for over 20 years (mainly in discrimination cases) I concluded that the toll of litigation on the parties (health, relationships, quality of life) was too great to continue. I mulled over alternatives (walking the Chilterns Way). The result was YESS (Your Employment Settlement Service), an innovative charity. YESS advises employers and employees how to resolve disputes without litigation - and without grievances which ratchet up conflict rather than resolving it. I found, after 5 years of YESS, that the outcomes for clients were better, in most cases, than what would be achieved in the tribunal. Now I only mediate in private and judicial mediations.

Mediation: negotiating in the shadow of the law

ACAS research found that Conflict at work was experienced by 35% of those surveyed.  Poor conflict management can cause stress, anxiety or depression and impact on workplace productivity. Of those who went through mediation, 74% said their conflict was fully or largely resolved.

Mediation avoids the ‘blame game’ which is the stuff of litigation. It focuses on solutions. And these solutions are not limited by the law, only by what both parties agree to on the day, with the help of a mediator. Nothing is final until everything is agreed - so all options are on the table.

Mediation is a voluntary, flexible and confidential process. The aim is to settle a dispute with the help of a trained mediator.  The mediator discusses, with participants, their issues and what they want from the mediation to see if agreement can be reached.  The parties have more control than they do in the tribunal as it is voluntary. If they don’t like it, they can walk away.

Litigation

Of course, litigation is sometimes necessary – e.g., multiple equal pay claims, test cases, regulatory breaches and to ensure serious wrongdoings are not the subject of a cover-up, such as whistleblowing, a culture of harassment and discrimination. 

And litigation is the ‘stick’ which is always in the shadow when negotiating and the carrot to encourage settlement. 

The litigation process does not have to be an aggressive one. In the negotiation stage, stating the facts (however egregious) and letting the facts speak for themselves is often more powerful. It is more likely to encourage resolution – at any stage up to the final decision.

A few thoughts

• The first question a lawyer should ask their client, in a workplace dispute is; What do you want to achieve?  And then How do you think you can achieve your aim. The aim might be to remain employed for 3 months to have time to find another job, not something a tribunal could order;
• Psychology plays a big part.  In simple terms: be nice/polite to the other side and they are more likely to want to settle.  Accusations and blame engender defensiveness and counter allegations, then there is ‘war’.
• If a party refuses to mediate or the mediation fails, the only option may be litigation. BUT, I believe, it is rarely too early and never too late to mediate.