Mediation

Mediators in Hungerford Berkshire, mediation

Why consider mediation? At Dickins Hopgood Chidley we understand that becoming involved in a dispute, whether it be with a business, customer, or between individuals, can be stressful, time consuming and expensive.

So when we look at how best to resolve your dispute, we look not only at Court proceedings, but also at methods of Alternative Dispute Resolution (ADR).

There are many varieties that are suitable for different types of dispute, but this fact sheet considers Mediation.

What is Mediation?

Mediation is a voluntary process whereby the parties agree to appoint an independent third party, the mediator, whose role is to assist the parties in coming to a mutually agreed resolution to a dispute. The mediator is not a judge; they will not decide the case or come down on one party’s side. Instead they discuss the parties’ positions on the case and settlement offers and discuss risks of the case and other factors that a Court would consider, to help the parties narrow the issues and eventually, all being well, come to a negotiated position.

Mediation is confidential and without prejudice, which means that nothing said at the mediation can later be used in any court proceedings. This gives the parties the freedom to say what they like and come to any agreement they wish, which a Court may not be able to award.

Proceedings do not need to have been issued for a mediation to be attempted between the parties to a dispute;

indeed the trend is moving towards early mediation to avoid the costs of issuing Court proceedings at all.

How does Mediation work?

The parties, either together or at the suggestion of one, will agree to attend mediation. This will not be ordered by the Court, as Mediation is a voluntary process, but the Court does have an expectation of the parties to attempt to settle the dispute at all stages, and can impose cost sanctions on a party that unreasonably refuses to mediate. Once the parties have agreed to attend mediation, they will propose mediators and agree which one is to be appointed. Some mediators specialise in certain areas and it is important that a mediator is appointed who has the relevant knowledge of the area of law the dispute covers. Sometimes a party wants ‘their’ mediator to be appointed, but in reality, as the mediator is independent, it makes little difference which party nominates him or her.

Once the mediator has been appointed, the parties will agree a bundle of documents, known as the mediation bundle, which the mediator will review prior to the mediation. The parties may, and the mediator may require them to, exchange a position statement, which is a document that sets out their position on the dispute and what they wish to achieve at the mediation. The position statement may even set out thoughts on offers they would make. A ‘for the mediator’s eyes only’ statement may also be produced, which would only be disclosed to the other party with the consent of the other.

On the day of the mediation, it may begin with a joint session, where all parties sit in one room and the mediator chairs a discussion of the issues of the case. This is not a requirement and it may be that the parties do not meet through the entirety of the mediation. The parties will then break out to their own room and the mediator will shuttle between them, initially discussing the dispute generally to get an understanding of the parties’ position, perhaps facilitating an exchange of legal arguments before building up to the exchange of offers and counter offers until, hopefully, a settlement is reached.

Mediation is a voluntary process and one party may stop participating at any time. Equally, mediations can be quite long, with discussions going on into late evening. Once an agreement has been reached, it is not binding until it has been recorded in writing and signed by all parties. This is usually undertaken by the legal advisers with assistance from the mediator.

What does Mediation cost?

The fees of a mediator are variable and are sometimes based on the value of the dispute being mediated. Typically, a contractual dispute mediator would charge a fee in the region of £800- £1,500 per party. Additional costs on top may be travel, and additional charges if the mediation runs over a certain time of the day.

On top of the mediator’s fees are legal fees, which also vary depending on the complexity of the dispute being mediated, and whether there is a requirement for barrister attendance, which is sometimes beneficial in complex disputes. If you would like more information regarding mediation or any other method of ADR, please contact Robert Salame to arrange a consultation: 01488 683555 or rsalame@dhcsolicitors.co.uk.

Unfair Dismissal, Wrongful Dismissal and Discrimination

Dismissal – Key Issues to Consider

Employers must take great care to act fairly and lawfully when dismissing employees to reduce the risk of a claim being made at the Employment Tribunal.

The five potentially fair reasons for dismissal:

Conduct. This could be a single act of misconduct or a series of less serious acts

Capability or qualifications. This includes poor performance, ill-health and formal qualifications

Redundancy. This includes workplace closure, business closure, or reduced need for employees

Illegality. Where continuing to employ the employee in the position they hold would contravene a statutory restriction (for example, because of their immigration status)

‘Some other substantial reason’. This is a catch-all category of other potentially fair reasons.

If the employer does not have one of these reasons then the dismissal will be unfair even if a fair procedure is adopted. Once the employer has established one of these reasons it must act reasonably, and be seen to do so, before dismissing an employee.

The employer must follow a fair procedure.

Even if there is a potentially fair reason for dismissing an employee, an employer must still follow an appropriate fair procedure before deciding whether to dismiss. This means that it has carry out a proper investigation, consider alternative penalties, act consistently (by reference to how it has dealt with similar incidents) and generally act reasonably and fairly.

The employer must act reasonably in treating the reason for dismissal as sufficient to dismiss.

Even if there is a potentially fair reason for the dismissal and the employer has followed a fair procedure, the employer must also act reasonably in treating that reason as a sufficient reason for dismissal.

The employee should be dismissed in accordance with their contract.

Employees generally have a right to be given a period of notice (or, depending on their contract, a payment in lieu of notice if their employment is terminated). Employers must not base the dismissal on a reason that is discriminatory. An employer must not base a dismissal on a reason that is directly or indirectly discriminatory based on a protected characteristic, and must not discriminate against an employee during the dismissal process

Restrictive covenants and wrongful dismissal

Dismissing in a manner that breaches an employee’s contract is likely to lose the employer the benefit of any contractual rights, such as post employment restrictions preventing the employee working for a competitor. It would also result in the employee having a claim for wrongful dismissal.

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to leave. There are risks in proposing such a solution, so it is advisable to take legal advice before entering into any negotiations.

Qualifying periods

Generally, employees must have completed a qualifying period of two years’ continuous employment before they can bring a claim for unfair dismissal, although there are exceptions (for equality and/or discrimination claims).

Sometimes, from both a practical and commercial point of view, it is better to try to reach a financial agreement with an employee to ensure that they do not take any further action as a result of the termination of their employment. It is advisable that employers take legal advice before entering into any negotiations, and that a formal settlement agreement is signed by the parties.

For advice on all employment law issues, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Terms and Conditions

The importance of good Terms and Conditions

Written terms and conditions protect your business, and enable two parties (e.g. customer and supplier, or joint venture partners) to understand their rights, duties and responsibilities in relation to a business deal. Well drafted terms and conditions should provide complete clarity for both parties on what should happen in a given situation, and avoid uncertainty and misunderstandings which can lead to unnecessary dispute.

You should consider including the following provisions when preparing terms and conditions for your business:

• A clear definition of the products, services or digital content to be provided

• Payment terms (including the right to charge interest for late payment)

• Delivery timeframes

• Guarantees or warranties

• Setting out what happens if either party is in breach of the agreement

• The duration of the agreement and the notice required from each party to end the agreement

• The law governing the contract

Consumer rules and guidance

There is extensive legislation to protect consumers (in particular the Consumer Rights Act 2015) which:

• Implies terms into contracts with consumers, giving consumers rights and remedies in respect of their purchases of goods, services and digital content.

• Requires that consumers are given certain minimum information before a contract is formed.

• Gives consumers entering into distance contracts for most goods, services and digital content a cooling off period, in which they can cancel penalty-free.

• Requires that any terms used in a consumer contract must be “fair”.

• Prohibits misleading and aggressive sales practices by the trader generally, both in advertising and marketing and in the terms themselves.

Generally the trader cannot contract out of its obligations or exclude or (unreasonably) limit its liability for their breach. Terms and conditions which attempt to do so will be unenforceable and their use may in itself be a breach of consumer protection law

Business-to-Business rules and
guidance

A trader’s dealings with business customers are far less strictly controlled than their dealings with consumers. Legislation and common law rules imply certain terms into contracts for the sale of goods and services between businesses, however in many cases these implied terms may be varied or excluded provided that it is reasonable to do so.

The important parts of standard terms are driven by purely commercial decisions and the business’s operating

procedure, for instance, payment terms or how delivery is to be effected. In particular, if the standard terms incorporate technical specifications, care must be taken to ensure that these specifications comply with the business’s standard terms

Incorporation of terms and conditions

A business’s standard terms and conditions will only be effective if they have been properly incorporated into a contract. Ideally they should be set out or expressly referred to in a contract that both parties sign. The next best option is for a business to bring its standard terms to the attention of the other party at the earliest possible opportunity in as much pre-contract and contract documentation as possible (this will also help in the event of a battle of the forms when two businesses are negotiating the terms of a contract and each party wants to contract on the basis of its own terms). This would include setting out the standard terms on the business’s website, brochures, purchase order forms, quotation acceptances and, if a course of dealing has arisen between the parties, on invoices and delivery notes.

Finally, when introducing new standard terms, a copy should be sent to every customer or every supplier stating that the new terms will apply in the future.

For assistance in preparing terms and conditions for your business, contact Charlotte Grew: 01488 683555 or cgrew@dhc-solicitors.co.uk

Debt Recovery

Debt Recovery legal advice from solicitors and mediators who care - in Berkshire. Calculator with debt notices and a pen.

At Dickins Hopgood Chidley Solicitors, we offer a full debt recovery service, including complying with the Protocol, issuing proceedings, negotiation, Alternative Dispute Resolution (ADR) and representation at final hearings. This factsheet considers the Debt Recovery Protocol.

When does the Protocol apply?

The Protocol applies to businesses (including sole traders and public bodies) who are claiming from an
individual (including a sole trader). It does not apply to business to business debts.

Information to be provided by the Creditor

The creditor should send a letter of claim to the debtor which must include:-

• The amount of the debt

• Whether interest or other charges are accruing

• How the debt arises and the content of the agreement

• Where instalments have been offered by the debtor, explanation why this is not appropriate and/ or why Court proceedings are being considered.

• How the debt can be paid

• A prescribed information sheet, response form and financial statement form, and details of a return address.

The letter should be sent by post and any other applicable means available, such as email. The debtor has 30 days to respond.

The Debtor’s response

The Debtor’s response should be made by completing the response form and financial information sheet.

The creditor should consider the responses given and decide how best to move forward, for example by settling a payment plan or commencing proceedings.

Early disclosure of documents

The protocol provides for the parties to engage in early disclosure of documents to help them reach a settled position.

Where a request is made by a debtor for documentation, the creditor must provide the document within 30 days, or provide a reason why this is not possible.

Alternative Dispute Resolution (ADR)

The parties should consider settling the dispute through ADR, at all times.

ADR may include negotiations, without prejudice meetings, or mediation. The size of the debt may dictate what method of ADR is attempted.

Compliance with the Protocol

The Court will expect the parties to have complied with the protocol before proceedings are commenced. The Court may impose sanctions on parties for failing to comply, including in relation to costs.

If you have any questions about the pre-action protocol for debt claims, please contact Robert Salame to arrange a consultation: 01488 683555 or rsalame@dhc-solicitors.co.uk

To discuss this and to obtain more information contact:
Robert Salame at Dickins Hopgood Chidley Solicitors,
The Old School House, 42 High Street, Hungerford, Berkshire, RG17 0NF 01488 683555

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