Ian Spiteri Bailey recently gained accreditation from CEDR, one of the largest mediation centres in Europe. He has set up a firm called ObjectiveHR, which specialises in providing HR services, with the main two pillars of its activity are workplace mediation and training.
“I have been practicing employment law and legislation for the past 20 years, and I wanted to try something different. Mediation is one of the alternative dispute resolution processes that can be taken between an employee and an employer.”
“The aim of this firm is to provide mediations services. People should realise that workplace mediation actually works. Workplace mediation should be encouraged, I want to go for it, provide it and promote it.”
Mediation can be a face saving exercise
Mediation is not just a time saving exercise when compared to litigation through the courts. It can also help the company involved to avoid negative publicity, which is a victory in itself, Dr Spiteri Bailey points out. The prime concern of the mediator is not to find the solution but to help the parties comes to a solution.
“The settlement is always the parties’ settlement. When an agreement is reached, the mediator himself will ask the parties or the lawyers of the parties to draft the agreement themselves in the interests of their respective parties but based on the agreement that would have been reached,” Dr Spiteri Bailey explains
“The mediator’s role is not of solving the issues but of helping the parties to solve the issue. The lawyers will only see the interests of their respective parties and the mediator acts impartially.”
“A mediator’s role does not necessary have to be a successful role in the sense that, it is not the competence of the mediator to seek that the parties necessarily come to an agreement. The process is the parties’ process. This is not like a judge who has to come to a final decision. The mediator will help the parties reach a solution.
“One other big advantage is that a company gets to save face, particularly when sensitive issues are involved like sexual harassment or discrimination. It is not nice for an employer to have to defend such cases publicly. Mediation, which is completely confidential, is therefore a face saving process.”
Dr Spiteri Bailey says that often both parties emerge as victors from the mediation process, resulting in a “happy company” and a “happy victim” because the issue would not have been made public and would have been resolved.
Typical litigation takes one and a half to two and a half years
Lengthy litigation is a huge drain on a company’s resources, both human and financial. The average dispute between an employer and employee takes anywhere between one and a half to two and a half years to be resolved. Mediation by comparison is far more expedient.
“The mediation process requires the agreement of both parties. A qualified mediation is then chosen, a date is set, and more often than not you start in the morning and keep on going as long as need be.”
“One party aims high and the other party aims low. The mediator, given the skills he has will try as much as possible to bring the parties close to each other. Once both parties are happy, a binding agreement is signed. Rather than having a dispute drag out over two and a half years, you have it solved in one day.”
“There are mediations that we have settled in an hour. God forbid that we had gone to a tribunal as it would have taken loads of hours. In an hour we solved the issue through mediation.”
Many incidents at the workplace merely get brushed under the carpet, but it pays for everyone to solve issues at the place of work and workplace mediators provide the tools and the process.
The disputes that crop up most frequently relate to cases of unfair dismissal, discrimination, sexual harassment and victimisation, Dr Spiteri Bailey says.
“Taking unfair dismissal as an example, the law provides for a four month period where employees can seek redress.”
“Objective HR is expedient enough to use those four months to go through the mediation process and try and bring you to a solution without going to the industrial tribunal.”
A practical example of successful mediation
One case successfully mediated by Dr Spiteri Bailey involved a female employee resigning after a case of alleged sexual harassment.
“The employee filed proceedings against a leading company for constructive dismissal, which means that the employee resign but still sues for unjust dismissal claiming she was forced to resign.”
“There was a process of correspondence which led nowhere. The company was disputing her allegations, we filed proceedings in front of an industrial tribunal. The company in question wanted to avoid bad publicity so we decided to go through a mediation process with the agreement of both parties. Within two or three hours, a settlement was reached.”
“The employee was happy and the company was happy. Even though it had to pay out compensation, it would have probably had to fork it out anyway by court order, but it saved on expenses and human resources, as well as saving face.”
“This was one of my first mediation processes and the climax of it all was seeing both parties happy after the issue was resolved. “
Lawyers may resist mediation
Dr Spiteri Bailey says that the legal profession might resist mediation, seeing it as an incursion on their territory and a threat to their daily bread and butter.
“A prolonged case works against the lawyer. More often than not a lawyer is paid at the end of the proceedings. It does not pay a lawyer to have proceedings prolonged unnecessarily.
“If disputes are decreased it does mean that there will be less business for lawyers. In truth, even a lawyer can be involved in the mediation process and it will probably less time to solve his clients issue and probably pay him better. Having results in hand earlier means that a bigger workload can be taken on.”
Dr Spiteri admits that lawyers do sometimes take on more cases then they can handle, sometimes to the detriment of their clients. Making the lawyer more efficient in that his cases are decided earlier means he can take on a better workload, he says.
“If throughout the afternoon before the industrial tribunal I have to deal with four or five cases, when other cases are bought onto my diary I have difficulty in keeping up. So you start putting off one sitting to another date, you miss another sitting and people start complaining, that’s the truth.”
“If you know that you have a mediation process which could possible take three to four hours, I can dedicate that time to one client, solve the issue and go on to the next client, and I think even lawyers themselves become more efficient.”
Money wasted on ‘unnecessary’ proceedings
Dr Spiteri Bailey says that mediation is already an established practice in most developed countries, but unfortunately Malta always seems to be a laggard when it comes to these things.
“I think it is time to pluck u the courage and go for mediation, I appeal to the authorities and all the stakeholders to work on this. We are spending too much time, resources and money on unnecessary legal procedures. There is an alternative, let’s go for it,” Dr Spiteri Bailey concludes.