Many years ago I was encouraged to submit a high-profile equal pay claim to mediation. We had already won in the Employment Tribunal but an appeal was threatened and there were going to be extended arguments about quantum even at best. To say that I was sceptical would be an understatement – we had after all spent the thick end of two years getting to that point and were over £1million apart from the employer. And yet after just eight hours in mediation it was all done, settled in less than a day.
Shortly before the time ran out, but while we were still £100,000s apart, the mediator took both parties away from their lawyers into a room together. When they came out it was all agreed. And for years afterwards I wondered – what did he do to them in there? Did it hurt? And by what sort of dark arts had he taken a seemingly unbridgeable gap two years in the making and, in less than a day, bridged it?
Since that day mediation in the employment field has become more common, driven, in part by the increasing cost and complexity of legal proceedings and in part by mediations inherent advantages of speed, economy (as a relative term) and discretion. The Employment Tribunals have begun to operate their own mediation scheme in certain cases and the desirability of mediation has now found its way into the Foreword of the ACAS Code of Practice on disciplinary and grievance procedures. However, it is not as widespread as its potential merits should suggest, perhaps because few employers are yet willing to trust a process which they do not fully understand.
So starting next week the Squire Sanders Employment Worldview blog begins a series of insights into the mediator’s art, what to expect if you go to mediation on an employment matter and how to make the best out of it. We will let you know how to tell your BATNA from your WATNA, and why going into the Insult Zone is less fun than it sounds.
By kind consent of CEDR, our writer for this series will be Caroline Sheridan, panel mediator for the Centre for Effective Dispute Resolution and one of the very few non-lawyer mediators featured in Legal Experts 2010 and the Chambers UK Guide 2012 Home – Chambers Partners.