Today was a good day for mediation in the UK.

Today was not a good day for BA customers especially those with travel plans from Heathrow to a European destination next Friday. I am one of them.

Photo: A Bucklow

The Court of Appeal decision handed down today may have been a bit of a surprise for some and the appeal story may not yet be over as BA are considering an application to the Supreme Court. Rejecting the early ruling of the High Court on Monday, two Court of Appeal Judges decided that

it would be wrong to thwart the desire of staff to take strike action on the basis of a “technicality”.

A third judge, the Master of the Rolls, Lord Neuberger, agreed with BA.

However, the most important comment, which has been included in all the reports I have seen today was this:

Lord Judge, the Lord Chief Justice, stressed that the strike would have to be resolved by negotiation. He said: “Legal processes do not constitute mediation. On the contrary they often serve to inflame rather than mollify the feelings of those involved.”

Hear! Hear!

I am very encouraged by this and I sincerely hope that both sides will find the courage to close the gap so that BA can get on with rebuilding their business.

For a longer report published in the Independent Newspaper.

Hong Kong by Steve Webel

I picked up this announcement in the Standard (HK) about the launch of a Mediation Information Office in Hong Kong. There will be no Court mediators and the parties will choose their own mediator. I feel that this is a real improvement on schemes where the court appoints mediators. It would be great to see schemes like this take root in England and Wales. What do you think?

Judiciary makes case for mediation

Monday, January 04, 2010

Mediation, a process that aims to resolve disputes and keep them out of the courts, takes another step forward today with the Judiciary opening an information office on the practice.
The Mediation Information Office has been established under the Judiciary’s Practice Direction 31 on Mediation, which came into operation last Friday.

The practice direction covers relevant civil cases in the Court of First Instance and District Court. It contains the procedure to be followed by disputing or litigating parties to engage in mediation after the commencement of a court action by writ.

The office provides litigants with information to help them consider whether they should attempt mediation to resolve their disputes, and to enable them to seek it from professional bodies.

“The target users are parties who have commenced or are about to commence civil proceedings in the High Court or District Court, including unrepresented litigants,” a spokesman for the Judiciary said yesterday.

The office, which is in the High Court Building in Queensway, will serve as a focal point of inquiries for all court-related mediation.

“As the Judiciary has to maintain its independent and impartial position, mediation will not be provided by its staff but by accredited mediators to be appointed by the parties themselves,” the spokesman said. [Emphasis added]

Secretary for Justice Wong Yan-lung is leading a cross-sector working group to promote mediation. A report is to be released for public consultation early this year.

A report in the British press this week tells the story of a law student, Riam Dean, who won an Employment Tribunal claim against her employer, US firm Abercrobie and Fitch for unfair dismissal and harassment on the grounds of her disability. The case raises some interesting questions about the conflict between the employer’s right to choose how they present themselves (branding) and the rights of employees as enshrined in employment law. Disability discrimination is a key area for disputes at the moment.

The account describes how a young woman, born without her left forearm, was banished to the stockroom because she wore a cardigan to cover the join on her arm and in doing so her “look” breached a rigid policy on presentation, a policy which by accounts ran to 45 pages.

Screen Grab from the Abercrombie & Fitch Web Site

On the Abercrombie & Fitch website you will find a very clear statement on diversity. Any young person reading this might reasonably think that there is a policy of inclusion. On the other hand a critical mind might see the discrepancy between that and the overwhelmingly clear message communicated on every other page of the web site that only perfect bodies “need apply”. Employees are even encouraged to enter a modeling competition to feature in the company’s 2010 calendar. (see above)

The diversity statement boasts training activities and clear policy guidelines which ensure that all staff are aware of the need to include people who have disabilities or who are challenged in some way. They tick the boxes and with well crafted words.

This conflict was experienced first hand by the supervisor that banished this young woman to the storeroom. Instinctively, she made the choice between the professed policy of inclusion and the more compelling policy of looks. In my view her actions were the more “truthful” and authentic if wrongheaded.

So I wonder why a law student would apply for a job here? Was it optimism or something else?

And I wonder why the interviewer gave her the job knowing the existence of the policy on looks, unless it was out of fear that not to do so would expose the company to a claim of disability discrimination?

There was a claim for disability discrimination which in the end failed as the tribunal found that she was not treated any differently from any other employee. She did get home on the harassment claim and unfair dismissal which cost the company a few thousand pounds but who knows how much in lost reputation.

Personally, I am a strong supporter of diversity and I believe that organisations should make adjustments to allow disabled people to participate fully. We are a diverse society and the richness of that society and how we treat people is a demonstration of our civility.

On the other hand, as an employer and business owner, I understand that employers should have the freedom to say how the company should be presented and how staff should represent the brand. I do not subscribe to the perfect body/perfect look idea and that most probably has something to do with me not being a size 00! I am, however, struggling to argue against the right to employ people who are a good fit with the brand and the target market or to argue for enforcing a diversity policy which is clearly incompatible with the company ethos when it is so extreme.

The cynic in me says: a law student with a disability has done herself no harm in the job market by pursuing a claim for disability discrimination and winning (although not well as it happens).

The business owner in me says: a company has a right to decide how their brand is portrayed.

The human being in me says:  the pursuit of perfect looks to the exclusion of everyone else is deeply unpleasant and even dangerous.

The marketing director in me says: A&F: this is a PR disaster and the cost to you will be much more than £9000 plus legal expenses – you should have mediated the dispute! And given similar problems in the US, you really do need to do some work on your recruitment procedures and sort out how you include people who are disabled.

The mediator in me says: Amanda you don’t know all the facts and you certainly don’t know all the circumstances! And the burning question is: why did the supervisor want her off the shop floor and in the storeroom? Was it because she was wearing a cardigan and breaching the dress code or something else?

A report published last month by the Georgia Commission on Dispute Resolution found a family mediator, who was also a licensed psychologist, guilty of gross misconduct.  This refers to breaches of their published Ethical Standards for Mediators, and specifically for failing to “avoid any dual relationship with a party which would cause any question about the mediator’s impartiality” and for failing to show “impartiality in word and deed” and “failing to maintain the confidentiality of the statements made in mediation.”

I have a strong sense that this is a landmark story for mediators around the world for many reasons and that commercial mediators should not be tempted to discount the importance of this on the basis that it concerns a family mediator.

Which hat shall I wear today?

The main points in the report are as follows:

The Committee found that Respondent established relationships with the subject matter of the couple’s divorce, and that Respondent engaged in multiple professional relationships with Complainant’s family, in violation of the Ethical Standards for Mediators. Respondent’s multiple roles created a clear conflict of interest and eroded the integrity of the mediation process. And it was foreseeable that Respondent’s multiple roles would prompt Complainant to question Respondent’s impartiality as a mediator, even if Respondent did not display any actual partiality. When it was clear that Respondent’s credibility was beyond repair, Respondent did not withdraw as mediator as the rules require.

The second breach occurred because ‘in denying the motion, the court wrote in its order that it “found [Respondent’s] testimony and involvement with the parties in this case questionable at best.”

and then

“In May 2007, Respondent submitted to the court an eight-page affidavit because his “integrity and skill as a mediator was called into question in court.” The court needed to know “the true reason for the failed mediation,” Respondent stated. “I sought only to clear my name by describing [Complainant’s] manner and approach throughout the mediation process.

The Commission found that

By recounting in his affidavit Complainant’s behavior during the mediation, Respondent apparently believed that Complainant’s behavior was not a “statement” or “information” and therefore not subject to confidentiality requirements. That is incorrect, as emphasized by Advisory Opinion 6.4 Therefore Respondent’s description in his affidavit of Complainant’s behavior in the mediation violated the confidentiality rules. 5 Of course, a party’s oral statements during a mediation would certainly be “information”and thus confidential. Therefore Respondent’s quoting and paraphrasing of Complainant’s mediation and caucus statements in the affidavit violated the confidentiality rules. 6.

To sum up, Respondent’s testifying voluntarily in open court about the mediation and Respondent’s voluntary submission to the court of an affidavit detailing Complainant’s behavior and words in the mediation constituted multiple violations of the confidentiality rules.

Conclusion
This case demonstrates the fragility of a mediator’s credibility and the need for the mediator to scrupulously guard against even the perception of impartiality and bias. It also shows how that credibility, once lost, is nearly impossible to restore. Therefore, the committee strongly cautions against mediators handling cases in which the parties have engaged or intend to engage the mediator in another professional capacity. Mediators may find themselves violating not just the ethics rules for mediators, but also the ethics rules governing their other professions.

The Committee further recommends that mediators never voluntarily testify about their mediations under any circumstances other than those covered by the exceptions to confidentiality in the Supreme Court ADR Rules. If necessary, subpoenaed mediators should enlist the assistance of the local court ADR program director or the Georgia Office of Dispute Resolution in quashing the subpoena and educating court and counsel.

Likewise courts should never require or allow mediators to testify about their mediations. The mediator’s promise of privacy to the parties – which allows them to communicate fully and openly without fear that the information would be used against them later – is critical to the success of the mediation process.

The fact that the Georgia Commission on Dispute Resolution chose to publish the report is significant. It sends a clear message that having an Ethical Standards for Mediators means something and that those responsible for supervising should be and are prepared to investigate and take action. This is good for the profession. It is also good for the promotion of self regulation as opposed to the any other variety.

From the practicing mediator’s point of view (and I include commercial mediators in this) there are a number of helpful reminders. I do not know all the facts and circumstances and so the following points arise from my thoughts about the significance of this report and the issues identified by the commission.

1. re-read your own code of ethics and reflect on the conditions where you might breach the code;
2. be aware that your determination to find a solution doesn’t keep you engaged in the mediation for longer than is useful to the parties: maintain your objectivity;
3. be aware that your expertise in other fields doesn’t cloud your judgment or seduce you into taking inappropriate risks. Simply put, when you are engaged as a mediator, act as a mediator and more importantly, be seen to act as a mediator and not as a therapist/counselor/lawyer/barrister/arbitrator;
4. resist all temptation to leverage your other business practice development from your mediations.  It is so easy to say “I can do that for you”. Good intentions are not a good defence!
5. Notwithstanding that one’s reputation is vital working capital, be careful how quickly you rise to defend it and be sure you need to. Perhaps someone else is better placed to do that for you. Paradoxically, the ego is so often the enemy of reputation.

I feel extremely sorry for the mediator in question. This is the mediator’s nightmare. It does bring home the importance of the support of a professional body, peer reviews, and developing a good habit of reflective practice all of these help to minimise the risk of the “train leaving the rails”.

Does this story make you feel uncomfortable? Do you agree or do you have different views? Have you had a close shave?

Thank to Charles Middleton-Smith for pointing out a very interesting article from by his colleague, Antoine Adeline of Hammonds Hausmann in Paris.

Nothing to lose and everything to gain

The article is in French and Google Translate does a fair job of translating the text for those of you who don’t speak French…

Cour de Cassation

In brief the article is prompted by a recent judgment (8 April 2009) by the Court of Cassation which strengthens and clarifies a previous decision by the Joint Chamber of the Court of Cassation on 14 February 2003.

The meaning of which is that, in France, if the contract terms include a mediation clause no one can afford to fluff through the “invitation to mediate process”. The recent judgment makes clear that if you have a contract term to mediate, you must tick the box to confirm that mediation has been attempted and when you do,  you must make sure that you have indeed tried to mediate. Without evidence eg. that a mediator was actually appointed, ticking the box will not “tick the box”.

As Antione Adeline says, when at least 2/3 of mediated cases settle then you have “nothing to lose and everything to gain.”