Mediation approach: Taking the heat out of employment disputes:

Disputes: CEL wants to take the heat out

Four law firms have joined forces to launch Collaborative Employment Law (CEL), a group aiming to bring a novel mediated approach to employment disputes as an alternative to litigation, modelled on a technique developed by family lawyers.

The founding firms – Thomson Snell & Passmore, Brachers, Furley Page and Thackray Williams – are all in the south east of England, and will refer clients to one another to ensure that employee and employer have the chance of a non-adversarial alternative to the employment tribunal or court.

All participating lawyers will hold an ACAS certificate of internal workplace mediation or equivalent, and unlike a conventional mediation there will be no independent third-party mediator, so if the collaborative approach fails, the lawyers will simply revert to their usual roles.

Nick Hobden, a partner and head of employment at Thomson Snell & Passmore, told Legal Futures the service would encourage “both parties to think creatively and constructively to resolve the dispute quickly and cost-effectively… to look at what their respective interests are and to try and see whether the dispute can be resolved in a collaborative and dignified way”.

He said the idea was influenced by the development of collaborative law in family work, but that it was not directly comparable: “We looked at what family lawyers were doing and we thought we could build something of our own creation, applying similar principles. But it doesn’t translate identically, because in family law if a husband and wife don’t reach agreement, then both the lawyers have to withdraw.”

He said a collaborative approach could achieve agreement in aspects of employment disputes that an employment tribunal or conciliation could not hope to reach. For example, the nature of the announcement of someone’s departure from employment, where it was important because the employee had a reputation and contacts in the industry, was something that would not be awarded by a tribunal.

A collaborative approach could be used “when one party is still employed by the other and has raised a discrimination claim, and potentially constructive dismissal, but doesn’t want to actually resign – they want to continue working and often the relationship has broken down between the employee and the boss concerned.

“It’s a way of avoiding grievances followed by appeals, followed by disciplinaries, followed by dismissal and appeals, etcetera.”

Mr Hobden said Brachers did a lot of work for the NHS. “They feel this is the ideal because it does provide an opportunity, a pitstop, for both sides to explore matters before positions get hardened.”

He said that in practice the service would only work where both parties were represented by CEL firms. “If one of us is representing one party, say an employer, and they say ‘we’ve got this dispute with an employee and we want to resolve it in a way that doesn’t end up at the employment tribunal’. We’ll say ‘this is our solution [CEL]… let’s put your employee in touch with one of our member firms, and vice versa.”

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