Crowley Solicitors is a leading regional law firm based in Cork, who have a special interest in employment law and industrial relations, family law, general and commercial litigation.

 Today’s article from Crowley Solicitors looks at recent developments in the area of mediation.   It highlights a new Labour Relations Commission (“LRC”) initiative that aims to promote the early resolution of workplace disputes through conciliation and mediation.  This development comes hot on the heels of the publication of the Mediation Bill 2012 by Minister Shatter. The promotion of conciliation and mediation to compulsory status in employment disputes brings mediation into the mainstream dispute resolution arena.  The LRC is not the first judicial arm to recognise the importance of mediation - the Commercial High Court has seen a practice develop where the Court has indicated its willingness to find against parties on the question of costs in circumstances where they refuse to engage in mediation. Many employers are now providing for mediation in contracts of employment, as opposed to offering it as an optional extra in grievance policies.  While the promotion of mediation to compulsory status is to be broadly welcomed, it will be imperative for parties involved to ensure that the mediator briefed is appropriately registered and qualified as the industry is currently unregulated.  Deirdre Crowley writes:

1.    Introduction
As recently as 2012, Justice Cross in the High Court criticised an employer for their interference in an internal mediation process. (http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/7b3a25e22aaec83d802579bf00348824?OpenDocument). The case represents a warning signal to employers as to the rules of engagement when dealing with mediation. Questions such as the following require careful consideration:
 
    Who briefs the mediator?
    Are briefs to be exchanged?
    Whether a brief is necessary at all and
    Who an appropriate mediator is.

While mediation is now considered to be best practice as an early dispute resolution mechanism, it is fraught with uncertainties and regulation in this area is long overdue.

2.    How successful is mediation?
According to the Equality Tribunal’s Annual Report 2008, 68% of the cases referred to mediation reached successful completion.  In 2009, a total of 251 claims were referred to mediation at the Tribunal with two-thirds of mediated cases reaching agreement or were not being pursued further.
According to the Labour Relations Commission Annual Report 2008, the Labour Relations Commission chaired 1,726 conciliation conferences in 2008 and it secured a settlement in 80.48% of all cases.

In the UK, mediation is used frequently in employment disputes as an alternative to court proceedings.  The UK Chartered Institute of Personnel and Development (CIPD) conducted a survey exploring how workplace organisations use mediation.  The survey found that the benefit most frequently mentioned as a result of using mediation was that of improving relationships between employees (83%), followed by reducing or eliminating the stress involved in pursuing more formal processes (71%). 

3.    LRC Early Resolution Pilot Scheme available from April 2012 - Key Features of the Pilot Scheme
    The service is independent, free and confidential;
    The Case Resolution Officer can handle the matter through a representative;
    Information will not be passed to the other party without agreement;
    The content of discussions with the Case Resolution Officer cannot be used as evidence at a hearing;
    If agreement is reached, the terms of the agreement will be recorded on an agreed form to be signed by both parties;
    If agreement is not reached, the claim or referral can still be pursued.

4.    Commentary
According to the Department of Jobs, Enterprise and Innovation document “Blueprint to Deliver a World-Class Workplace Relations Service” (April 2012), mediation and conciliation agreements reached through the LRC will be binding and enforceable through the civil courts.  This is a significant step and clarifies any question over the legal status of such agreements.  It should be noted that mediation agreements reached through other fora may not be binding.

Questions remain in relation to whether a claimant will lose his/her place in the queue for a hearing by agreeing to avail of the Early Resolution Service.  Where either or both parties are not genuinely committed to resolving the dispute through mediation, this further layer in the process could ultimately lead to further delays in having the matter heard at a formal hearing.

The report also indicates that the manner in which the conciliation/mediation type service will be resolved is through “a range of intervention tools” including e-mail and telephone.  Meeting directly with the parties will only take place in exceptional cases.  Such methods of communication may prove to be effective in some situations, though it does raise the question as to how meaningful communication by e-mail and telephone can be in challenging situations.  

This article is a general summary on the subject and is not intended to be a thorough review or as a complete statement of the law.  

Deirdre Crowley is an employment lawyer and mediator with Crowley Solicitors, Cork (http://www.crowleysolicitors.ie/deirdre-crowley.html ).

Draft legislation introduced by the Minister for Public Expenditure and Reform aims to protect whistleblowers who speak out against wrong doing or cover ups by an employer or work colleague ( http://per.gov.ie/wp-content/uploads/Draft-Heads-Protected-Disclosure-in-the-Public-Interest-Bill-2012.pdf)

 A recent High Court case  demonstrates the need for employers to take care in handling long term absences from the workplace and their dealings with medical experts.   The decision comes at a time when the High Court appears to be coming down hard on employers for the manner in which they have dealt with employee stress and their handling of internal investigations (Sweeney v Ballinteer Community School [2011] IEHC 131 and Margaret Kelly v Bon Secours Health System Limited, judgment of Mr. Justice Cross delivered on 25 January 2012).  The cases of Sweeney and Kelly turn on their own unique facts but they do contain important direction from the High Court which have broad application. Deirdre Crowley writes:

Minister for Justice, Alan Shatter will unveil details for radical reform of Ireland's bankruptcy rules before Government today, 24 January 2012. It is understood that the proposals will seek to tackle consumer debt and will involve three distinct debt settlement arrangements and a three-year bankruptcy regime.

Surprisingly little fanfare has surrounded the publication of the Industrial Relations (Amendment) Bill, 2011 (“the Bill”) on 22 December 2011.

When will an employer’s inability to pay be considered?

For the first time since the National Minimum Wage Act, 2000, the Bill creates a statutory right for employers to apply to the Labour Court for a derogation from its obligation to pay JLC rates if the employer can prove an inability to pay.  An application for a derogation can only be given by the court to an employer once every five years.