Discussing UK law. Links: swarb.co.uk | law-index | Acts | Members Image galleries

Mediation Question

Employment and Discrimination Law

Mediation Question

Postby Millbrook2 » Sat Nov 25, 2017 8:34 am

Recently went to a mediation hearing with the lady (Claimant) I am helping in a sexual harassment, sex discrimination, and unfair dismissal.

We alleged that there was a remark made at a Board meeting which amounted to sexual harassment and the Respondent has always denied that any such remark was made. This matter was investigated by the person doing the disciplinary hearing and grievance by email to the Directors present and, as part of discovery, we asked for the emails.

At mediation the Respondent produced a bundle which contained their 'counter schedule of loss'. They offered £3,700 made up of £700 - loss of statutory rights and £3,000 injury to feelings. Under this latter point they stated - 'At it's height then, the Claimant was subjected to a single act of harassment consisting of a single comment made in a board meeting'.

Despite previous denials I take this as an admission on their part. I can only imagine that either the emails will reveal that the remark was made or they cannot be sure all 4 directors would perjure themselves in a hearing by deny the remark was made.

I understand that what is said in mediation stays in mediation and cannot be used in a hearing. However if there is no email evidence and they reverse their position at a hearing on whether the remark was made is there anything we can do?

FYI we got the £3,700 raised to £60k but failed to settle because of another issue.
Millbrook2
 
Posts: 787
Joined: Tue Nov 27, 2012 9:05 am

Re: Mediation Question

Postby atticus » Sat Nov 25, 2017 9:22 am

Was a mediation agreement signed? If so, read what it says.

The answer to the question is probably "no".
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Mediation Question

Postby Millbrook2 » Sat Nov 25, 2017 9:28 am

There was no mediation agreement as we failed to settle.

I thought the answer would be no but it seems perverse that an admission of fact can be made in mediation and they can subsequently deny it, in effect perjuring themselves.
Millbrook2
 
Posts: 787
Joined: Tue Nov 27, 2012 9:05 am

Re: Mediation Question

Postby Millbrook2 » Sat Nov 25, 2017 2:06 pm

Took some finding but in Unilever PLC v Proctor & Gamble Co (2000) FSR 344 Court of Appeal;

There were a number of well recognised occasions where the without prejudice rule did not prevent the admission into evidence of what one or both of the parties said or wrote. These included:

(i) where the issue was whether the without prejudice communications had resulted in a concluded compromise agreement;
(ii) where it was admissible to show that an agreement apparently concluded between the parties during negotiations should be set aside on the ground of misrepresentation, fraud or undue influence;
(iii ) where a statement might be admissible as giving rise to an estoppel;
(iv) where the exclusion of the evidence would act as a cloak for perjury, blackmail or other unambiguous impropriety;
(v) where the evidence was admissible in order to explain delay or apparent acquiescence;
(vi) where, in an action for negligence, the evidence was admissible to show that the claimant had acted reasonably to mitigate his loss in his conduct and conclusion of negotiations brought by him against a third party;
(vii) where the evidence was admissible as being an offer made without prejudice save as to costs.

iv) should do it.
Millbrook2
 
Posts: 787
Joined: Tue Nov 27, 2012 9:05 am

Re: Mediation Question

Postby dls » Sun Nov 26, 2017 6:48 am

Take care with that case. It concered a threats action - an action with its own peculiar rules and "but this court has, in Forster v Friedland and Fazil Alizadeh v Nikbin . . warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion."

Your issue wuld be not about what was said in WP discussions but is about proper disclosure.
David Swarbrick (Admin) dswarb@gmail.com - 0795 457 9992
User avatar
dls
Site Admin
 
Posts: 12515
Joined: Thu Nov 01, 2012 1:35 pm
Location: Brighouse, West Yorkshire

Re: Mediation Question

Postby YorkshireBloke » Sun Nov 26, 2017 2:47 pm

Hi,

Also would Gibb v Leeds United Football Club give insight? Think the argument that G asking for a Settlement zAgreement was in itself evidence of bad faith: the Judge threw it out.

YB
YorkshireBloke
 
Posts: 30
Joined: Tue Aug 08, 2017 9:44 pm

Re: Mediation Question

Postby Goldensyrup » Mon Nov 27, 2017 6:38 pm

I partook in a mediation meeting linked to an ongoing High Court Case. During that mediation the mediator took instruction from the other side that included two serious threats of action if I did not drop the case. When those threats were received I immediately ended the mediation and left indicating that I would report the incidents to the Judge in the case. The other side's London Barrister at the court door just before the next hearing, threatened me stating that maters in mediation must remain secret. Such was the abuse, I disregarded the barrister and they were reported to the Judge where one month later his clerk checked with me to see if the threats had been carried out. The other side lost the case and I believe this ingredient of conduct did not help.
Goldensyrup
 
Posts: 234
Joined: Sat Jan 12, 2013 11:52 pm

Re: Mediation Question

Postby atticus » Mon Nov 27, 2017 10:00 pm

The other side had a London Barrister?
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W

Re: Mediation Question

Postby Goldensyrup » Tue Nov 28, 2017 9:00 am

Well they went 250 miles after using a local barrister to pay for the best and lost.
Goldensyrup
 
Posts: 234
Joined: Sat Jan 12, 2013 11:52 pm

Re: Mediation Question

Postby atticus » Tue Nov 28, 2017 2:12 pm

A good lawyer can sometimes turn a poor case into a winning case; more often a poor lawyer can lose an otherwise strong case.
User avatar
atticus
 
Posts: 20652
Joined: Sun Nov 11, 2012 2:27 pm
Location: E&W


Return to Employment

Who is online

Users browsing this forum: No registered users and 1 guest