Mediation: a Review of 2017

James Watson Blog, mike

 

Several stories in the news this year have got me thinking about the increased use of mediation. On the positive side, mediation has been used, or recommended to be used, in an increasing number of cases in 2017. And frustratingly, there are so many situations worldwide that could have benefited from mediation, but which have been prolonged, worsened, and been made very public by applying adversarial, litigious, win-lose techniques.

I have picked just three situations to explore in a little more detail.

Charlie Gard

In March this year, the harrowing predicament of Charlie Gard hit the headlines as his case went to the High Court. The treating hospital, Great Ormond Street, wanted to confirm as lawful their decision to withdraw artificial ventilation and to move to palliative care only. The baby’s parents wished for treatment to be continued, whether in that hospital or elsewhere.

By late July, when the decision was ultimately taken to discontinue ventilation, the case had received massive exposure on social media, with protesters outside the hospital, enormous fund-raising efforts, and discredited claims of a proposed overseas cure for the baby’s condition.

In amongst the melee, it was clear that the hospital and the parents had somehow ended up in a positional stand-off around whether to continue the baby’s treatment. There had been a breakdown of trust and confidence between the two ‘sides’, exacerbated by the period of six or seven months prior to finally withdrawing ventilation. By the time of the final hearing, both sides were communicating only via lawyers.

After that hearing the judge, Mr. Justice Francis, said:

“I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions”.

Having worked with cases like this for some time, we at UK Mediation would always recommend that mediation should be tried early on, before mutual trust and confidence have eroded. And as a general reminder for mediators, I think the judges’ comments are quite correct: even if the two sides cannot agree, if mediation helps them to better understand one another’s thinking, positions, and hopefully interests, then it is a worthwhile endeavour for all concerned.

Employment Tribunal fees dropped

I wrote in September this year about the UK’s Supreme Court ruling that the Employment Tribunal fee system was unlawful. From July 2017 claimants would no longer be required to pay up to £1,200 to lodge a claim.

The consequent sharp drop in claims later this year, especially those of lower value, showed that potential claimants were discouraged from making low-value claims by having to pay the tribunal fee. This situation is now likely to reverse.

Some examples of claims that have been in the news this year are those connected to the ‘gig economy’: especially relating to pay for voluntary, regular overtime being classed as normal pay, or concerning the rights of people to be classified as workers rather than as self-employed contractors.

Clearly, mediation would not be the remedy of choice for such unscrupulous employers who intend to deprive workers of holiday pay or other entitlements in these ways. And just as clearly, some workers will make weak, frivolous, or vexatious tribunal claims if they can afford to. But I also noted back in September just how extraordinarily high the numbers of tribunal claims had become: over 190,000 claims were made in the year before the fees were introduced, meaning that for every 500 employees, about 3 per year would be expected to make a claim.

For mediators, the lessons are clear: avoid a situation where a conflict develops into a tribunal claim. Offer mediation early on, and don’t leave it until it has become a win-lose stand-off. Recognise that there are situations where someone’s employment rights need to be protected or tested in the tribunal; but also recognise that early, informal intervention will always bring the most satisfactory outcomes for both sides, provided they are negotiating in good faith.

 

Widespread reporting of sexual harassment

This year there has been an appalling number of instances in the news of people abusing their power and influence to ride roughshod over others’ rights and needs. I don’t want to start unpicking individual sexual harassment cases here, or to go over the rights and wrongs of any one person’s behaviours. However, with these cases, I find I am wondering whether, and how, mediation could possibly help.

In the worst instances, the perpetrator’s motivation is try and meet their own sexual or egoic needs by deliberately and oppressively using the power that they have by virtue of their status, their position, or their wealth. Also, in the worst cases, that perpetrator might come into mediation in bad faith, just to avoid prosecution, to keep the details covered up, and usually to try and get a confidentiality clause in any agreement. Surely in these instances we would be doing the victim a disservice to expect them to mediate in such an atmosphere?

As mediators, we know that there are many skills and techniques that can be brought to bear in redressing power imbalances in mediation, including in mediation around some degrees of sexual harassment. We also know, backed up by research*, that alleged victims in most harassment cases just want the behaviour to stop. They have no particular wish to punish the alleged perpetrator, expose their misconduct, or have them lose their job. They just want the behaviours to STOP.

The option to speak directly to the perpetrator (we will assume ‘alleged’) is often not there for the victim, because of the fear of further harassment, risk of ridicule or exposure, or other reasons.

Blowing the whistle publicly on the perpetrator can also come at a price. In nearly all of this year’s more public cases, victims would have feared retribution, never getting another acting role, losing their current engagement, or being blackmailed in some way.

Formal action should always be an option: abusers, rapists, and harassers should know that their actions will bring very serious consequences if their victim(s) choose to resort to the law. But again, many victims are not out for revenge, nor do they have an appetite for litigation.

So, apart from doing nothing or going to court (and the press, and social media), victims have the option of mediation in order to achieve the goal of stopping the behaviour. As mediators, then, we draw on our ethical practice to ensure that the mediation is truly voluntary and confidential, and that it gives both sides an equal opportunity to speak, respond, and be heard by the other side. There must be an explicit consideration of what will happen after the mediation, to ensure there is no retribution. And if parties are entering into any form of binding agreement, they should get legal advice before, during, and if necessary after the mediation.

My own experience of mediating many cases like this over the last eighteen years or so is that mediation provides a unique opportunity to bring the victim and perpetrator together and to bring the behaviours to an end.

With a few of the cases that have come my way, I have turned them down because I am not happy that there is 100% voluntary participation, or I have believed that an employer, for example, was trying to brush something under the carpet rather than to exercise their proper duty of care. With others, I have ended the process because I sensed duress or had concerns that the perpetrator was participating in bad faith.

However, with the great majority of these situations, the outcomes have been far more positive: the victim got a chance to let the perpetrator know how their actions and words had impacted on them; the perpetrator sincerely and genuinely acknowledged that what they did was unacceptable, wrong, and unwelcome; there was a credible assurance that the behaviour would stop right then, and there was an agreed system of monitoring to ensure that any repetition of the behaviour would ultimately lead to litigation and most likely to serious sanction.

For mediators, then, I would say firstly that I am in no doubt that mediation can and does work for cases of harassment and abuse. Depending on the details of the case, the wishes of both potential participants, and the degree to which we can give all the necessary ethical assurances, it is a very powerful tool for achieving the principle goal of getting the behaviours to stop.

And it is an interesting exercise to run through all the high-profile cases of 2017 and to wonder which of these might have potentially ended up in mediation, had the time been right.

* Rowe, M. P. (1990) People who Feel Harassed Need a Complaint System with both Formal and Informal Options. Negotiation Journal, 1990a, 6(2), 164-165.

 

In conclusion…

So, this rounds up my quick review of some of the situations in 2017 where mediation might have, or nearly was, used as an alternative dispute resolution method. I haven’t mentioned Syria, North Korea, the Rohingya situation, and many more. And I sincerely hope that by this time next year these situations won’t be in the running for such a discussion either.

Best wishes, health and happiness for 2018.