Resolving workplace disputes during Covid-19
TRADITIONALLY, an aggrieved party would seek to resolve a dispute by issuing legal proceedings and pursuing the other party through the court system.
However, in recent years, alternative forms of dispute resolution, such as mediation, have become increasingly popular. Despite the ongoing restrictions in place due to Covid-19, it is still possible for parties to use mediation as a constructive form of dispute resolution.
What is mediation?
Mediation is a highly effective way of resolving disputes without the expense or stress of going to court. The parties appoint an independent mediator to help them try to negotiate a satisfactory resolution to their dispute, usually over the course of a single day. The parties are in separate rooms for the majority of the day with the mediator going back and forth trying to facilitate a deal which both parties are prepared to accept.
What are the benefits of mediation?
• Speed of resolution: mediation can be used early in a dispute and a facilitated agreement can be reached more quickly than if the parties used the court process.
• Reduced and predictable costs: Costs in mediation are generally far lower than resolving matters through the courts. Litigation using the court system is usually very expensive and the overall costs can be highly unpredictable. The mediator’s fees are agreed at the outset, allowing peace of mind and certainty for the parties involved.
• Greater control: The parties have complete control over any agreement reached as they are directly involved in negotiating the terms of any settlement. They are not forced to accept an outcome with which they are not happy and can agree commercial outcomes which a court would be unable to make.
• Preservation of business relationships: Mediation helps the parties focus on communicating and achieving an agreed settlement meaning that often existing business relationships can be preserved.
• Confidentiality: Mediation is usually confidential whereas court proceedings are public and can attract adverse publicity.
How can mediations take place during lockdown?
Whilst mediation is normally carried out in person at a neutral venue, the parties are now able to mediate “remotely” using well established platforms such as Microsoft Teams or Zoom. This means that mediations can occur even more quickly and efficiently.
Remote mediations can take place notwithstanding the ongoing restrictions currently in place. Parties can mediate in comfortable and familiar surroundings such as in their home office without the need to travel to a neutral venue. The parties can also make better use of their time doing other things whilst the mediator is engaged with the other party.
Indeed, during the ongoing Covid situation, mediations and in particular remote or virtual mediations, are fast becoming the preferred route for resolving all manner of commercial, employment and family disputes. At the start of lockdown, very few cases were able to proceed through the courts and it was generally only urgent cases which were heard.
Most cases were put on hold, with the result that cases have taken longer to progress than normal with the likelihood of further delays even after lockdown restrictions are eased. Against this backdrop, it may be more sensible than ever to consider mediation as an effective means of resolving disputes.
Although mediation is not legally binding, a final agreement reached by the parties at mediation, can be enforced in the same way as any other contract.
If a negotiated settlement cannot be achieved through mediation, then the parties can still seek to resolve their dispute through the courts.
Chris Ross (firstname.lastname@example.org) is managing partner at McKees (www.mckees-law.com), specialising in commercial disputes and helping clients avoid disputes where possible.