Mediation

Would a sorry work for you?

Litigation is often the only recourse an employee has but it is not without its limitations. It is costly. The average cost for an employee of bringing a claim in the Employment Tribunal was £2,739 (2003) and a claim based on discrimination involving lots of witnesses is likely to be much higher. It is risky – even a strong case probably has a 60% chance of success, it all depends on what happens on the day of the Tribunal. It can be very stressful and time consuming and being cross-examined is no fun. And if you are looking for an opportunity to tell someone how it was for you and a clear ruling that your employer did wrong by you then you are likely to be disappointed as about three-quarters of Employment Tribunal cases are withdrawn or settled. Even if it proceeds to Tribunal the possible outcomes are limited, you can win or lose, and if you win, the consequences of that are usually limited to compensation. Finding emotional closure and moving on can be difficult when a claim is being or has been litigated.

Mediation offers an alternative, which in the employment realm is still little used but is likely to grow. It is a lot less costly. The statistics vary but mediation is likely to resolve the dispute in around three-quarters of the cases. It is relatively informal and quick. Your employer will hear you speak about how it was for you. And no-one imposes a solution, both parties have to find a solution that works for both of them. The potential is there for more creative solutions, which may or may not involve monetary compensation, which is where a sorry comes in.

People do sometimes authentically apologise in mediation, although they often need help to get over their defensiveness and their fear that admitting responsibility will be used against them. The mediation is only carried out with the express written agreement of both parties that it is confidential and ‘without prejudice’, which means anything said cannot be referred to in any legal proceedings – this makes apologies possible.

An authentic apology involves four elements:
an acknowledgement of the ‘injury’
an acceptance of responsibility
the willingness to be vulnerable and accept responsibility without making excuses
evidence of emotional effect – remorse, sorrow, regret or possibly shame

There are degrees of apology and what is acceptable to one person is not going to be sufficient to another.

Confession
Ownership is taken for the deed and the effect acknowledged. However it is dressed up it amounts to a statement of the truth, a simple “I did it”.

Confession & regret
A confession is made and sincere regret expressed, evidenced by the actual words spoken and most importantly the body language. “I did it and I am sorry”.

Confession, regret & repentance
“I did it, I am sorry, it will never happen again.” Evidence of changed ways is usually needed.

Confession, regret, repentance and justice
This highest level of apology involves an open-ended offer of “what can I do to make this right?”

Frances Wright, Solicitor, HR Consultant and Mediator,
Email: frances.wright@wright-associates.com