Do I have to try mediation?
Should I issue a court / tribunal claim before mediating?
What is my legal deadline and what does it mean?
How does the process work where there is a supporter acting on behalf of the complainant?
Which areas does EMS take referrals from?
How long does the mediation process last?
Why does the complainant have the ability to choose the Desired Agreements?
What is a compromise agreement and why do I need this as well as a EMS Outcome Form?
Who will pay for the Independent Legal Advisor (ILA)?
Why is it that a complainant can only take one supporter when a respondent can bring a number of representatives to the meeting?
What if I do not have a friend or supporter available to come to the meeting with me?
What if I don’t want to be in the same room as the person I am in dispute with?
Can I bring my lawyer or adviser to the mediation meeting?
Where will the meeting venue be and will we have to pay for it?
How long does a meeting last?
What if I need reasonable adjustments for the mediation meeting?
What options do I have if I feel too stressed to handle a face to face meeting?
What if there are issues around the wording of an agreement?
What if we settle some issues in dispute but not all of them?
What happens if an agreement cannot be reached in a meeting?
What if the respondent does not stick to the agreements?
I have received an offer of settlement from the respondent asking that I settle directly with them. Would this be an easier solution?
If this dispute goes to Court will the Judge be told what was agreed and discussed in the mediation meeting?
How do I make a complaint about the Equalities Mediation Service?
Q: Do I have to try mediation?
A: No, mediation is always voluntary and either party can withdraw at any time! Recent changes to the Civil Procedure Rules 1998 encourage parties to try and settle matters without going to Court;
“The parties should consider whether some form of dispute resolution would be more suitable than litigation… Both the claimant and defendant may be required by the court to provide evidence that alternative means of resolving their dispute were considered. The courts take the view that litigation should be the last resort.”
Mediation can be an effective way of parties gaining a greater understanding of how the other feels about the complaint as well as trying to reach agreement. It can help to resolve the complaint without the need for court or tribunal, avoiding the time, expense and stress of going to a hearing. The alternative routes are public which can cause additional problems, whereas mediation can be kept confidential. Any agreement will be made by the parties, not imposed by a Judge or Panel. The settlement can include things which a court or tribunal does not have the power to award, such as staff training in equality awareness, changes in policy, an apology or an employment reference.
Q: Should I issue a court / tribunal claim before mediating?
A: If the mediation process does not result in full and final settlement, you may wish to pursue your complaint through the appropriate court or tribunal. There are different, and very strict, time limits for lodging a case. Agreeing to mediation will often mean that your time limit is extended by up to three months – the extension date will need to be checked and agreed by your caseworker at the EHRC. In some situations, the case is referred with a very tight legal deadline.
When this happens your EHRC caseworker may advise you to lodge the case to ensure that you can still go to court / tribunal if mediation is not successful.
Courts will almost always grant a stay (a delay of the court hearing) to allow mediation to take place. Judges have the power to recommend that mediation be considered if they think it is appropriate. Parties may be asked to explain to a Judge why they have not tried mediation.
Q: What is my legal deadline and what does it mean?
A: County and sheriff court deadlines are six months less one day from the date of the incident you are complaining about.
The Tribunal deadline for employment cases is normally three months less one day from the date of the incident you are complaining about. However, since the Dispute Resolution Regulations came into force, the three month time limit for employment cases will automatically be extended by three months (to six months) where the Dispute Resolution Regulations apply, in order to allow the parties to resolve the dispute, for example, where grievance procedures have been commenced but not completed. Exceptionally, and only in very limited circumstances, the court or tribunal will consider a late application when they believe it is ‘just and equitable’ to do so.
Where a complaint is brought under the goods, facilities & services or education provision or under EC regulation 1107/ 2006 and where both parties agree to take part in mediation, a three-month extension is added to the legal deadline for issuing court proceedings, thereby allowing parties more time to try to resolve the dispute.
This extension of time does not apply in cases brought under employment provisions.
Q: How does the process work where there is a supporter acting on behalf of the complainant?
A: Some people who have made a complaint may require adjustments to be made to regular procedures in order to use the mediation process. It might be, for example, that:
- the complainant has learning difficulties
- the complainant has – or is perceived to have – mental health difficulties
- the complainant is a young person under 16
- English is not the complainant’s first language
- effective communication is through the spoken not the written word
- the complainant’s effective means of communication is sign language.
Additional steps should be taken in such cases to enable a person’s access to the mediation process. This may mean, for example, signposting or facilitating access to appropriate support services or getting help from a person’s relative or a representative.
Where possible, we try to ensure that the complainant remains involved, but we are flexible and are more than happy to work with others if this is seen to be the best option. The complainant will need to sign a form to confirm that they are happy for us to speak with the person acting on their behalf about the complaint. We will also ask exactly what role the supporter will be taking and will encourage the complainant to attend the meeting – making reasonable adjustments if this will enable them to attend.
To ensure that the Outcome Form is completed correctly it is important that the complainant signs to confirm whether the mediation has resulted in a full and final or no settlement.
Q: Which areas does EMS take referrals from?
A: We currently accept referrals from England, Scotland and Wales. Mediation Works also holds the DCSNI (Disability Conciliation Service Northern Ireland) contract with the ECNI (Equality Commission Northern Ireland) offering mediation services for cases of alleged Disability Discrimination.
Q: How long does the mediation process last?
A: We try to turn all cases around within 8 weeks. Sometimes this is not possible for reasons outside of our control, such as ill health of one of the parties or holidays. We are flexible and if cases have hearing dates set, we will work with parties to try and find resolution quickly. We have turned around cases in as little as 6 days!
Q: Why does the complainant have the ability to choose the Desired Agreements?
A: Desired Agreements (DAs) are put forward as topics for discussion rather than a list of demands. The items listed should clearly set out what the complainant feels would need to be agreed at the meeting for them to give up their rights to take the case to court / tribunal.
Where possible, DAs are shared with the respondent well in advance of the meeting to ensure that the respondent understands the importance and relevance of the agenda items. It may be that the respondent does not agree with the items listed on the Desired Agreements. The respondent will be given the chance to ask further questions and request further information prior to the mediation meeting. It is important that both parties are fully prepared and feel able to discuss with the case coordinator / mediator any potential problems that they might have responding to the DAs.
Both parties will discuss the agenda items – not just the complainant. It may be that the respondent agrees to attend the meeting with an open mind to hearing why the requests are there, whilst intending to justify why they feel that the request is not appropriate.
The DAs must relate to both the incident which led to the complaint and the relevant equality law.
Q: What is a compromise agreement and why do I need this as well as a EMS Outcome Form?
A: The compromise agreement is a legally binding agreement usually between an employee and employer when the parties want to set out the terms and conditions reached when a contract of employment is to be terminated or a dispute is to be resolved (when the employment contract is not being terminated).
The purpose of a Compromise Agreement is to provide certainty for both parties as it is very important that those involved understand what is involved before signing such an agreement.
It is a requirement of the Compromise Agreement that the complainant has received independent legal advice from someone professionally qualified (usually a solicitor or qualified trade union adviser) to give that advice. In most cases the employer will pay or contribute towards the legal expenses incurred in receiving the legal advice on the agreement.
The most important thing to understand about a Compromise Agreement is that in signing the agreement and accepting the settlement terms the complainant excludes their right to make a claim against their employer in Employment Tribunal.
In order to be legally binding, compromise agreements must:-
- be in writing
- relate to a particular complaint that the employee has or may have
- only be made where the employee has received advice from a relevant independent adviser, such as a solicitor. The legal adviser must have professional indemnity insurance
- identify the independent adviser
- state that the conditions regulating compromise agreements are satisfied.
Q: Who will pay for the Independent Legal Advisor (ILA)?
A: Generally the costs of appointing an ILA are funded by the employer.
Q: Why is it that a complainant can only take one supporter when a respondent can bring a number of representatives to the meeting?
A: It is important that each person attending the meeting has a role to play within the discussions. The respondent is encouraged to bring as few representatives as possible, whilst ensuring that the correct people are there to address the Mediation Agenda. Usually the fewer people are at a meeting, the more productive ensuing discussions can be.
It is important that the complainant contributes towards the discussions, unless for reasons relating to a disability they feel unable to do so. A supporter attends in a supportive capacity, and it would be unnecessary to have additional people.
When considering who should attend the meeting we advise that you consider, who understands the matters in the dispute, who has authority to settle, and will offer advice you consider necessary. Experience shows that the fewer people there are around the table, the higher the chances of settlement. When you are in mediation, it is perfectly acceptable to reach your advisors by telephone if they are not physically at the mediation meeting.
This question of who attends is one you should talk through with your case coordinator before mediation takes place.
Q: What if I do not have a friend or supporter available to come to the meeting with me?
A: We encourage complainants to bring a family member or friend where possible as there is often more than one respondent at the face to face meeting. You must let the mediator know beforehand who will be coming, as all those involved must know and agree who will attend.
Whether or not you bring someone with you, the mediator will look to you (rather than anyone you have brought with you) to talk about the issues in dispute as you’re the best person to explain how you feel. Please speak to your case coordinator / mediator and let them know if you would like us to try and find an independent supporter to attend the meeting with you.
Q: What if I don’t want to be in the same room as the person I am in dispute with?
A: Mediation meetings are usually held in a neutral venue close to the home of the complainant. The case coordinator will establish where they feel that there should be at least two private rooms for the mediation: one for each side in the dispute. If you don’t want to see the person you’re in dispute with, the case coordinator will take this into account and discuss this with the mediator prior to the meeting.
Anyone can ask for a joint meeting to be stopped for a while to take time out or to speak on their own to the mediator.
Q: Can I bring my lawyer or adviser to the mediation meeting?
A: It is not necessary to have a solicitor to represent you at mediation, particularly in small value cases.
In higher value and more complex cases a respondent’s legal representative is often present. If not, you can consult them on the phone while you are in mediation. The most important factor is to bring someone to mediation who has the authority to settle the matter.
Q: Where will the meeting venue be and will we have to pay for it?
A: We will arrange for the meeting to be held at a neutral venue as close as possible to the home of the complainant (usually a hotel or a conference centre).
If the respondent is travelling long distance and it is easier to use a venue with good travel link, please let us know that you would like us to look into this.
The EMS is a free service and you will not be required to pay for expenses – other than travelling costs to the meeting destination.
Q: How long does a meeting last?
A: You should expect your meeting to last between two and four hours depending how complicated the complaint and agenda are. It is very important that attendees allow enough time for the outcome to be agreed. The meeting will be considered a No Settlement if one of the parties has to leave before all of the Desired Agreements have been discussed and agreed. The form needs to be completed and signed at the end of the meeting.
Q: What if I need reasonable adjustments for the mediation meeting?
A: We will make reasonable adjustments to ensure that the parties are able to attend the mediation meeting. Your case coordinator will ask for details so please provide us with as much detail as possible. Examples of reasonable adjustments that have been organised for past meetings include:
- wheelchair accessible venue
- ergonomic chair
- meeting room with sufficient daylight
- note taker
- BSL interpreter
- advocacy services
- laptop provision
- telephone mediation
- large print document
- Braille services
- hearing loop
- Palantypist
- frequent breaks
- second room for medical treatment or breaks.
Q: What options do I have if I feel too stressed to handle a face to face meeting?
A: The conciliation meeting is nearly always face to face as this has scope for a much better outcome, but we will consider alternative arrangements as a reasonable adjustment for either party. Please let your case coordinator know if you feel that a face to face meeting will be difficult.
Q: What if there are issues around the wording of an agreement?
A: Where the parties reach full and final settlement, the Agreements Reached are recorded on the Outcome Form by the mediator and form the basis of the contract. The Agreements Reached will be linked directly with the Desired Agreements (DAs) and will be worded as such. We ask that all parties attend the meeting prepared and that the respondent attendees have sufficient knowledge and authority to respond to the DA’s.
The mediator will assist with wording the agreement. Their role is to ensure that the Agreements are SMART (Specific, Measurable, Achievable, Realistic, Time Specific). If you have any questions related to the wording of the Agreement or feel unhappy with the way that the outcome has been recorded, then it is very important that you raise it with the mediator at the mediation meeting.
Once the form has been signed and the meeting finished it is not possible to go back and make changes to the contents of the Outcome Form.
Q: What if we settle some issues in dispute but not all of them?
A: There are two outcomes in the mediation process; ‘full and final settlement’ or ‘no settlement’. In signing a full and final, the complainant gives up their right to take the case to court. Therefore it is very important that everything you wish to achieve from the mediation process is agreed and recorded on the outcome form.
If the parties can not agree on any particular item, the mediator will ask that they sign the form as a no settlement’. The respondent can request that agreements are still recorded and agree that they will still make any agreed changes, but they are not entering into a legally binding agreement.
Q: What happens if an agreement cannot be reached in a meeting?
A: If you can’t reach agreement on a complaint, you must then decide whether you wish to pursue the case through tribunal or court. The outcome of the case will then be decided by the tribunal panel or judge.
Q: What if the respondent does not stick to the agreements?
A: The EMS does not have powers of enforcement. In the unlikely event that an agreement is not kept, we recommend parties contact each other directly to discuss the problem. If no satisfactory response is received, please feel free to tell us your concerns. In some cases we may contact the other party to help resolve the situation.
Q: I have received an offer of settlement from the respondent asking that I settle directly with them. Would this be an easier solution?
A: Sometimes this is seen to be the best option for those involved. Our concern with parties settling directly is that there is no guarantee that the same problem will not happen again. The mediation Outcome Form, containing the Agreements Reached, forms a legally binding document between the parties. This completion of the Outcome Form safeguards those involved from the same issues occurring or being raised again.
Q: If this dispute goes to Court will the Judge be told what was agreed and discussed in the mediation meeting?
A: If a case is not settled at mediation and subsequently returns to the court, the court has no right to enquire what happened within the mediation, and respects the confidentiality of the mediation process. If one party suggest mediation and the other party refuses, in some circumstances the refusing party may be penalised in costs even if they win the subsequent litigation.
Q: How do I make a complaint about the Equalities Mediation Service?
A: If you wish to make a complaint about the service that you have received, please contact Mediation Works and request a copy of the complaints procedure.
Where a complaint cannot be resolved informally, we will ask you to provide your complaint in writing if possible. It will help us to resolve your complaint more quickly if you can give as much clear detail as possible, including copies of any documents and correspondence. Please also state that you are making a complaint in line with our complaints procedure.