Ten tips for mediating employment disputes: the scenario

To illustrate these tips, below is a fairly typical whistleblowing scenario. I think the scenario provides useful context, but if you want to skip straight to the tips, click here.

Employee (E):

“I exposed serious misdemeanours at a senior level in the organisation. Instead of dealing with the issues, you tried to brush them away and victimised me for raising them. In the end I was constructively dismissed. My mental health has been destroyed. You've ruined my career and my life.”

Organisation (O):

“Poppycock. You’ve inflated minor issues in response to valid criticism of your performance and conduct. We treated you as we did because your performance was poor and you were not prepared accept fair criticism. You reacted like a spoilt child. Any mental health issues you may face are not our concern.”

Oh dearie me! Not very fertile ground for mediation, you might think.

But uncertainties almost always lurk beneath these seemingly intractable positions. The evidence is often capable of pointing in more than one direction and there are other pressures. For example:

• Yes, E’s performance and response to criticism may have been questionable, but did that really merit the harsh treatment E was given?

• OK, so E did raise concerns about supposed regulatory breaches, but only after E's performance was under scrutiny. Was E merely trying to bite back?

• E regards the “exposed” issues as serious and deliberate breaches; O regards them as minor, inadvertent errors, which have in any event been corrected. What view would a judge take?

• Did E have reasonable grounds to believe the disclosure was in the public interest? The outcome of this point is often hard to predict.

• Although O regards the “exposed” issues as minor, its business is sensitive to reputation issues – not only with regard to current and prospective clients, but also to internal employment relations. Losing a whistleblowing case would be very damaging – but even a successful defence could adversely affect the business.

• Even if O cannot be proved to have caused psychiatric damage to E though negligence or breach of contract, O still has potential liability for disability discrimination, e.g. for failing to take reasonable steps to ensure that E's (possible) mental disability did not put E at a disadvantage compared with other employees.

• The stakes are high. E claims to be unlikely to work again at the same level and is claiming for loss of salary and benefits up to retirement age – a very substantial sum. But E is highly experienced and qualified. Medical evidence in this area is often difficult to apply to future employment prospects. Will E really be unable to find a similar level of work?

• Fighting the case will be expensive for both parties. Continued litigation will inevitably cause further strain on E's mental health. O can ill afford the distraction of senior managers at a difficult time for the business. O should not underestimate the mental strain that fighting such an emotive case will place on O's witnesses.

• But everyone is angry and nobody wants to back down!

I’ve made up the facts referred to above – but they’re based on an amalgam of real cases. As a party (or an adviser to one of the parties) you won’t know all the facts behind the other party’s position. Naturally, they’ll be open about what they regard as strengths, but are unlikely to be forthcoming about uncertainties and weaknesses. If you’re an adviser, even your own client may not have been entirely open with you, or with themselves.

So how do you maximise the chances of successfully mediating a dispute like this? My suggestions are in the next blog post.

Photo: Jerzy Strzelecki, CC BY 3.0 https://creativecommons.org/licenses/by/3.0, via Wikimedia Commons