Webinar: Keeping Conflict out of Court


Webinar: Keeping Conflict out of Court

This article has been co-written by Camilla Palmer  and David Liddle

  • Free webinar: Keeping conflict out of court: life’s too short to litigate.
  • When: 7th December 2016. 12.30pm for 1 hour
  • Register here

Surely employees want and are entitled to justice for the unlawful treatment that they have received. Don’t employers need to be held to account when they make mistakes; they should not be allowed ‘to get away with it.’ Isn’t litigation the result of hard fought employment rights and surely, the threat of litigation is an essential tool in the negotiation process. In any case, isn’t the erosion of litigation opening the door to cheap justice and an acceptance of rogue employment practices?

That is the view of many lawyers and their clients. We beg to differ.

We are not saying that litigation has no place – it does work for rogue employers determined to flout the law and for use in test cases. It is also the stick behind the carrot. However, in most cases, it should be the absolute last resort. Only used after all reasonable attempts to settle matters have been exhausted. That includes the disputing parties sitting down and discussing the dispute face to face.

All sensible people know that litigation is damaging to both parties. However strong the arguments appear to be, litigation is at best uncertain. It is expensive and very time consuming. It is stressful and all-absorbing. It can cause reputational damage to either or both parties. Even a ‘win’ can be a pyrrhic victory if the employee does not achieve the desired outcome or never works in the sector again or the employer gets bad publicity and substantial time and legal costs are incurred.

The adversarial system, which engenders anger, bitterness and aggression (sometimes for both clients and lawyers) is rarely appropriate for employment matters and certainly not for resolving disputes. Arguably, legal threats and lawyers have no place in workplace dispute resolution as the focus should be on communication and collaboration between employer and employee to avoid disputes arising and when they do resolving them positively and quickly.

The problem that many employers face is that their HR systems are modelled on a quasi-judicial or litigation based framework: where rights trump responsibilities; where evidence trumps empathy and where procedural fairness trumps common sense. In order to really make an impact, employers and employers need to go a lot further than simply offering approaches such as mediation. They need to take a wider view of their human resources (HR) and employee relations (ER) policy framework and adopt a more values based and person centred approach.

Yes, we need a floor (or more) of rights and protection. Yes, employers and employees need to understand their legal rights and obligations. But too often fear of the law inhibits communication, trust and mutual respect which are key to a good working relationship.

Common refrains from employees who seek employment advice from YESS or dispute resolution guidance from TCM goes like this.

“I hate conflict and want to avoid it but I am deeply aggrieved at the way I’ve been treated and can see no alternative but a legal remedy”.

“I don’t want to go to court but I need to show them that they are wrong.”

“I want to remain on good terms with my employer but they are being unreasonable so it’s their fault”.

“I don’t want to be greedy, I just want what is fair and I want justice”.

As we often reassure these individuals: there are other ways to settle your dispute. Yet is seems illogical and often perverse that we are the first people telling the parties that there is another way, a better way, of resolving their differences. We asked ourselves, why aren’t lawyers promoting a proactive, collaborative and more responsible form of of dispute resolution for their clients.

HINT: ADR = Alarming Drop in Revenues

So what is the alternative to legal threats and litigation?

First, there should be a shift away from grievances and legal threats which often do more harm than good, leading as they do to defensiveness and then battle.  Policies such as TCM’s Resolution Policy™ provide timely support for employers and employees to help them to take the grief out of grievance.

Second, the focus should be seeking a solution through constructive dialogue. This may be done by helping and coaching an employee to engage with their employer or through an intermediary, whether the employee’s adviser or a mediator.

Third, more employers should implement ‘Mediate First’ approaches such as those established by TCM which encourage the employee and employer to ‘air’ the ‘issue’ and resolve them before resorting to a formal grievance. And finally, lawyers’ first question to all clients should be ‘How can we help you resolve this without litigation’.  So, what we need to do is take the ‘A’ out of ADR and talk about airing the issue.

This all seems obvious to YESS and TCM, both of whom have a track record in resolving disputes. Between us, we have seen many hundreds, if not thousands, of disputes resolved out of court via processes such as mediation resulting in a win/win outcome for the parties.

Free Webinar

David Liddle from The TCM Group and Camilla Palmer from YESS Legal have teamed up with the The Professional Mediators Association, Joanna Wade an Employment Judge at the Central London ET and David Parry from David Parry Employment Law to bring you a unique webinar exploring the nature of litigation and offering you expert advice and guidance on the range of alternatives.

About The TCM Group and YESS

YESS provides legal advice and support to employees and employers with a view to resolving matters quickly and cost effectively. Only if that fails (in under 10% of cases) is the client referred to a litigating lawyer. Camilla Palmer was an employment litigator for 20 years, acting mainly for employees. She gave up litigation when because of the negative impact of the litigation process on her clients – and set up YESS.

Formed in 2001 by David Liddle, TCM are the UK’s leading provider of dispute resolution, mediation and leadership training and consultancy. With a client listen spanning household names such as HSBC, Network Rail, Royal Mail, BT, Transport for London, Marks and Spencer, HMRC and Lloyds Bank amongst many others, TCM have extensive experience of embedding co-operative and collaborative HR and leadership processes across complex organisations.

We welcome your comments on this blog.

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