More Mediation for Employment Tribunals
Legalweek.com published an article
"Government Unveils Controversial Employment Tribunal Reform" by Claire Rucken on 27 January 2011 (Click Here)
I was surprised to see the word "Controversial" in the heading of the article - so there are others out there who do not agree with the reforms!!!
Most employment law is based on contract which in England & Wales is common law. Most people honour their contractual obligations but sometimes there is a dispute and breach of contract ensues. For some, myself included, wrongful or unfair dismissal is actually a defamation by the employer and I personally felt attacked by the law firm and by the judicial system. If everyone thinks they can breach their contract and mediate a new contract then standards will lower.
I was sacked for refusing to transfer by Professor Richard Susskind. My contract disciplinary clause was in operation because the firm had made three spurious allegations and upheld one in a kangaroo court disciplinary process. So it was lawful to warn or sack but not transfer. I have no knowledge of a conversation with Anne Glazebrook about a confidential memo left by Cathy James in the public network directory (so sack Cathy, which they didn't stating she is valuable - why and was I not valuable too - I was complying with company policy having confidential directories! I do however recall conversations with Catherine Johnson about the confidential memo as she told me about it). I don't know when and where or even why I would have a conversation with Anne. I had only had three conversations with her in a six month period so it would have been abnormal for me to speak to her on a fourth occasion which should have meant I would remember it. At best she was pretty vague in her own recollection of events during the disciplinary hearing and the firm were relying on impression and suggestion sourcing from Catherine's boss Andrew Blunderfield - Anne did like to sit in his room gossiping as they were chums from a previous firm. I was in the middle of my second year LLB exams sitting 3 hour disciplinary hearings instead of doing exam revision - it has had a detrimental effect on my LLB performance albeit I still got my four year degree with Honours. However, I am not a practising lawyer or barrister or legal academic or indeed still working in law, I am not even still working.
Mediation was just coming into the system when I was sacked in 1994 and I had previously written my first LLB essay in 1993 for Dr Lindsay Farmer on the subject in Legal Systems and Legal Methods in English law marked (down) at 50% - I was 100% accurate I believe. Why it is relevant, Masons (the law firm) and Professor Susskind and others engaged in corruption rather than settle the case out of court - there is no need for mediation really!!! - at the courtroom door will do just fine. They engaged on a path of (a) perverting the course of justice and (b) misconduct in public office via the judiciary.
Employment Tribunal - Mr De Saxe
Employment Appeal Tribunal - Mr Justice Morison
Court of Appeal - Mr Justice Peter Gibson and Mr Justice Mance (now Lord Justice's)
House of Lords - Law Lords, Slynn of Hadley, Hobhouse of Woodborough, Hope of Craighead
Parties involved at Masons were Cathy James, Siobhan Cross, Anne Molyneux, Neil Biggs, Tony Bunch dec'd, Professor Susskind, Bruce Carr, Michael Ford*, Sean Brannigan and possibly others linked to my next employment - law is thicker than thieves and it is a little village.
*Michael Ford was my witness and failed to attend; a complaint to the Bar Council concerning Ford, Carr and Brannigan involving Geoffrey Robertson QC and Jeremy McMullen QC created two stories from Ford and Carr - one appears to be telling the truth while the other evades and is lying. The Bar Council would not go further on the matter where it was apparent my witness was nobbled or nobbling without my knowledge!
CID Officers Davies and Sheridan of Southwark Police were asked to investigate but no one has been investigated or charged to my knowledge and belief.
Raising the action over a period of about 6 years and to gain nothing but corruption and a lot of knowledge about how they process law procedurally and substantively - and to do most of the corruption it was procedural (ex parte preliminary hearings and application hearings to remove the case from "ACCESS TO JUSTICE" and not dealing with CAUSATION but using the system to sidestep it).
Mediation came into the UK legal system in 1997 via the Woolf Reforms which became the Access to Justice Act 1999. My court case above shows the methodology used to corrupt a court case establishing that the Woolf Reforms were merely New Labour Government spin in the legal domain ... they were actionally DOING "Access FROM Justice". The theory and the practical meet up on this point. And so does Lord Woolf and Professor Richard Susskind who was IT Adviser to the Lord Chief Justice. Small world or little legal village at this level. I certainly did not get Access TO Justice even although I managed to get to the House of Lords level by sheer determination and intelligence not matched by the judiciary at all.
So, you might think the PARTIES would be delighted with the reforms being proposed to the Employment Tribunal - why spend all that time outmanoeuvring each other and going corrupt on the case - it is absolutely certain that the LDM v Masons action was corrupt: Mr Justice Morison's judgment does not include 5 case citations in the appeal document with arguments, nor the one case citation and ratio decidendi read verbatim on the day in court, nor legal arguments, nor points of evidence. You can only appeal ON A POINT OF LAW and the 5 case citations were Respondent's Counsel (Carr) in the lower court. Oops. both (a) and (b) above made out. (Gaelic proverb: in a Raven's nest you should find a raven). In a judgment you should find a point of law.
Maybe I just saw the worst of the court system and the stress and distress it can cause, but I still would not advocate more mediation, I would advocate that the system be seriously looked at and all the nonsense got rid of including ex parte hearings and skeleton arguments and procedural nonsense that delay the case plus more judges. In today's 21st century technology it would be quicker to create a public system that uploads the documents in the pleading and evidence. Having public access to the case for the duration of the case would surely have some impact on the parties wanting to settle at the courtroom door. [On this blog I have uploaded the Masons case in its entirety concerning pleadings but not evidence]. All cases follow the same framework anyway, so it is entirely possible to lead the case via technology. Most cases are quite small anyway and mine was three lever arch files in total - so quite small in the scheme of things, most will be smaller.
Uploading documents would also mean there is less need to charge a fee. What you want is employers with good employment practices and you are not going to get this if you can COMPROMISE the application of the rule of law via mediation. What you want is employers to learn from the experience of a Tribunal so as to treat their workforces properly and mediation is not going to be a deterrent. Employers are still going to be handing over money to claimants, albeit "gold will be left on the table", perhaps not so much money will be paid out.
Also bear in mind that (public) litigation is the only way to legally put private domain information into the public arena. This is a necessary methodology especially in the face of the recent Wikileaks debacle. All documents in a litigation are public domain. This should therefore be a reform focused on so as to be a deterrant on employers.
It is a myth that mediation is quicker and cheaper than litigation. There will still be the same number of disputes in the market, but the difference will be whether it is mediated or litigated or arbitrated.
Hence I advocate lawyers, barristers and judges should not be involved in mediation at all. Mediation should exist in its own territory and freedom of choice should dictate where the dispute is raised even although you can still litigate on the failure of a mediation. ie either traditional (court) or contemporary (mediation).
What is important in society is the application of the rule of law. It makes us safe and just. No street justice then. Standards are meant to be maintained and raised not compromised.
As law impacts universally, it should be possible to process cases in two categories (a) those that reiterate what the law is and (b) those that challenge the status quo.
There is no reason why Employment Tribunals could not exist as call centres styled courts with judges who do category (a) cases and judges who do category (b) cases which are harder to do.
And there is no such thing as a vexatious litigant - everyone, especially via human rights legislation, has a right to a fair hearing. The employer has to win sometimes.
Concerning myself, I offered Respondents on my second litigation the opportunity to use mediation, I made the mistake of being one day out of time to sue in litigation based on court personnel giving me dates, luckily I was permitted to sue for sex discrimination but lost the case due to the nonsense that Respondents pursued on the case and not doing discovery properly or at all and removing my evidence from the agreed court bundle necessitating a disagreed court bundle. Sex Discrimination did actually occur and performance figures prove it 100%. However, the judge preferred my bosses evidence even although one of them was evading and lying in their witness testimony. The judge also refused to call two Respondents for cross examination even although they are cited on the case and failed to produce witness statements which would have established one of my bosses was lying. You don't expect judges to be lax with the procedural rules.
Employment Tribunal : Chairperson Ryan
Parties S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, David Harrell, Keith Wood, Tim Pullen**, Marie van der Zyl and Susan Kelly, Alison Parker and Robin Shaw.
**Tim Pullen has been using his Godolphin Chambers address on legal documents but actually working for Geoffrey Robertson QC's Chambers, Doughty Street. He may have a conflict of interest for which Respondents have been notified but failed to apologise for - its a little legal village - see * above.
However, I am currently stayed in the Royal Courts on a personal injury and professional negligence case against the same Respondents above as being treated less favourably caused stress which was an aetiology trigger to personal injury. The judge requires me to have a litigant friend even although I am not entitled in law to one according to the Official Solicitor for England & Wales on two occasions. Such nonsense is at the behest and behoof of the judiciary - why can't they just get on with the substantive case and stop messing about with two years to date of procedural nonsense and a 4 year stay!
Queen's Bench Judge : Master Leslie
Parties: S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, Tim Pullen, Alison Parker, Paula Jefferson
Mediation looks awfully good idea to me just now, but Respondent's KNOW they are at fault, so settlement at the door of the court would be more opertune rather than a need to mediate. Employers don't want to settle I think. Besides mediation is only privatisation of the judiciary and legal profession. Lawyers, judges and barristers should be about "application of the rule of law" - that is why they study law. Mediation is rightly about compromise but it also hides the dispute by gagging it in confidentiality, ie privatises the dispute by covering it up. Currently lawyers, barristers and judges are doing both jobs. Litigation and arbitration are polarised concepts to mediation - they should not be processed in the same system as one undermines the other. They are naturally opposites and always will be on essence.
Now, should I adopt an attitude of not caring less anymore ...
WHY COMPROMISE WHEN YOU CAN SETTLE OUT OF COURT! ITS NOT ABOUT COSTS its about justice ...
"Government Unveils Controversial Employment Tribunal Reform" by Claire Rucken on 27 January 2011 (Click Here)
I was surprised to see the word "Controversial" in the heading of the article - so there are others out there who do not agree with the reforms!!!
Most employment law is based on contract which in England & Wales is common law. Most people honour their contractual obligations but sometimes there is a dispute and breach of contract ensues. For some, myself included, wrongful or unfair dismissal is actually a defamation by the employer and I personally felt attacked by the law firm and by the judicial system. If everyone thinks they can breach their contract and mediate a new contract then standards will lower.
I was sacked for refusing to transfer by Professor Richard Susskind. My contract disciplinary clause was in operation because the firm had made three spurious allegations and upheld one in a kangaroo court disciplinary process. So it was lawful to warn or sack but not transfer. I have no knowledge of a conversation with Anne Glazebrook about a confidential memo left by Cathy James in the public network directory (so sack Cathy, which they didn't stating she is valuable - why and was I not valuable too - I was complying with company policy having confidential directories! I do however recall conversations with Catherine Johnson about the confidential memo as she told me about it). I don't know when and where or even why I would have a conversation with Anne. I had only had three conversations with her in a six month period so it would have been abnormal for me to speak to her on a fourth occasion which should have meant I would remember it. At best she was pretty vague in her own recollection of events during the disciplinary hearing and the firm were relying on impression and suggestion sourcing from Catherine's boss Andrew Blunderfield - Anne did like to sit in his room gossiping as they were chums from a previous firm. I was in the middle of my second year LLB exams sitting 3 hour disciplinary hearings instead of doing exam revision - it has had a detrimental effect on my LLB performance albeit I still got my four year degree with Honours. However, I am not a practising lawyer or barrister or legal academic or indeed still working in law, I am not even still working.
Mediation was just coming into the system when I was sacked in 1994 and I had previously written my first LLB essay in 1993 for Dr Lindsay Farmer on the subject in Legal Systems and Legal Methods in English law marked (down) at 50% - I was 100% accurate I believe. Why it is relevant, Masons (the law firm) and Professor Susskind and others engaged in corruption rather than settle the case out of court - there is no need for mediation really!!! - at the courtroom door will do just fine. They engaged on a path of (a) perverting the course of justice and (b) misconduct in public office via the judiciary.
Employment Tribunal - Mr De Saxe
Employment Appeal Tribunal - Mr Justice Morison
Court of Appeal - Mr Justice Peter Gibson and Mr Justice Mance (now Lord Justice's)
House of Lords - Law Lords, Slynn of Hadley, Hobhouse of Woodborough, Hope of Craighead
Parties involved at Masons were Cathy James, Siobhan Cross, Anne Molyneux, Neil Biggs, Tony Bunch dec'd, Professor Susskind, Bruce Carr, Michael Ford*, Sean Brannigan and possibly others linked to my next employment - law is thicker than thieves and it is a little village.
*Michael Ford was my witness and failed to attend; a complaint to the Bar Council concerning Ford, Carr and Brannigan involving Geoffrey Robertson QC and Jeremy McMullen QC created two stories from Ford and Carr - one appears to be telling the truth while the other evades and is lying. The Bar Council would not go further on the matter where it was apparent my witness was nobbled or nobbling without my knowledge!
CID Officers Davies and Sheridan of Southwark Police were asked to investigate but no one has been investigated or charged to my knowledge and belief.
Raising the action over a period of about 6 years and to gain nothing but corruption and a lot of knowledge about how they process law procedurally and substantively - and to do most of the corruption it was procedural (ex parte preliminary hearings and application hearings to remove the case from "ACCESS TO JUSTICE" and not dealing with CAUSATION but using the system to sidestep it).
Mediation came into the UK legal system in 1997 via the Woolf Reforms which became the Access to Justice Act 1999. My court case above shows the methodology used to corrupt a court case establishing that the Woolf Reforms were merely New Labour Government spin in the legal domain ... they were actionally DOING "Access FROM Justice". The theory and the practical meet up on this point. And so does Lord Woolf and Professor Richard Susskind who was IT Adviser to the Lord Chief Justice. Small world or little legal village at this level. I certainly did not get Access TO Justice even although I managed to get to the House of Lords level by sheer determination and intelligence not matched by the judiciary at all.
So, you might think the PARTIES would be delighted with the reforms being proposed to the Employment Tribunal - why spend all that time outmanoeuvring each other and going corrupt on the case - it is absolutely certain that the LDM v Masons action was corrupt: Mr Justice Morison's judgment does not include 5 case citations in the appeal document with arguments, nor the one case citation and ratio decidendi read verbatim on the day in court, nor legal arguments, nor points of evidence. You can only appeal ON A POINT OF LAW and the 5 case citations were Respondent's Counsel (Carr) in the lower court. Oops. both (a) and (b) above made out. (Gaelic proverb: in a Raven's nest you should find a raven). In a judgment you should find a point of law.
Maybe I just saw the worst of the court system and the stress and distress it can cause, but I still would not advocate more mediation, I would advocate that the system be seriously looked at and all the nonsense got rid of including ex parte hearings and skeleton arguments and procedural nonsense that delay the case plus more judges. In today's 21st century technology it would be quicker to create a public system that uploads the documents in the pleading and evidence. Having public access to the case for the duration of the case would surely have some impact on the parties wanting to settle at the courtroom door. [On this blog I have uploaded the Masons case in its entirety concerning pleadings but not evidence]. All cases follow the same framework anyway, so it is entirely possible to lead the case via technology. Most cases are quite small anyway and mine was three lever arch files in total - so quite small in the scheme of things, most will be smaller.
Uploading documents would also mean there is less need to charge a fee. What you want is employers with good employment practices and you are not going to get this if you can COMPROMISE the application of the rule of law via mediation. What you want is employers to learn from the experience of a Tribunal so as to treat their workforces properly and mediation is not going to be a deterrent. Employers are still going to be handing over money to claimants, albeit "gold will be left on the table", perhaps not so much money will be paid out.
Also bear in mind that (public) litigation is the only way to legally put private domain information into the public arena. This is a necessary methodology especially in the face of the recent Wikileaks debacle. All documents in a litigation are public domain. This should therefore be a reform focused on so as to be a deterrant on employers.
It is a myth that mediation is quicker and cheaper than litigation. There will still be the same number of disputes in the market, but the difference will be whether it is mediated or litigated or arbitrated.
Hence I advocate lawyers, barristers and judges should not be involved in mediation at all. Mediation should exist in its own territory and freedom of choice should dictate where the dispute is raised even although you can still litigate on the failure of a mediation. ie either traditional (court) or contemporary (mediation).
What is important in society is the application of the rule of law. It makes us safe and just. No street justice then. Standards are meant to be maintained and raised not compromised.
As law impacts universally, it should be possible to process cases in two categories (a) those that reiterate what the law is and (b) those that challenge the status quo.
There is no reason why Employment Tribunals could not exist as call centres styled courts with judges who do category (a) cases and judges who do category (b) cases which are harder to do.
And there is no such thing as a vexatious litigant - everyone, especially via human rights legislation, has a right to a fair hearing. The employer has to win sometimes.
Concerning myself, I offered Respondents on my second litigation the opportunity to use mediation, I made the mistake of being one day out of time to sue in litigation based on court personnel giving me dates, luckily I was permitted to sue for sex discrimination but lost the case due to the nonsense that Respondents pursued on the case and not doing discovery properly or at all and removing my evidence from the agreed court bundle necessitating a disagreed court bundle. Sex Discrimination did actually occur and performance figures prove it 100%. However, the judge preferred my bosses evidence even although one of them was evading and lying in their witness testimony. The judge also refused to call two Respondents for cross examination even although they are cited on the case and failed to produce witness statements which would have established one of my bosses was lying. You don't expect judges to be lax with the procedural rules.
Employment Tribunal : Chairperson Ryan
Parties S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, David Harrell, Keith Wood, Tim Pullen**, Marie van der Zyl and Susan Kelly, Alison Parker and Robin Shaw.
**Tim Pullen has been using his Godolphin Chambers address on legal documents but actually working for Geoffrey Robertson QC's Chambers, Doughty Street. He may have a conflict of interest for which Respondents have been notified but failed to apologise for - its a little legal village - see * above.
However, I am currently stayed in the Royal Courts on a personal injury and professional negligence case against the same Respondents above as being treated less favourably caused stress which was an aetiology trigger to personal injury. The judge requires me to have a litigant friend even although I am not entitled in law to one according to the Official Solicitor for England & Wales on two occasions. Such nonsense is at the behest and behoof of the judiciary - why can't they just get on with the substantive case and stop messing about with two years to date of procedural nonsense and a 4 year stay!
Queen's Bench Judge : Master Leslie
Parties: S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, Tim Pullen, Alison Parker, Paula Jefferson
Mediation looks awfully good idea to me just now, but Respondent's KNOW they are at fault, so settlement at the door of the court would be more opertune rather than a need to mediate. Employers don't want to settle I think. Besides mediation is only privatisation of the judiciary and legal profession. Lawyers, judges and barristers should be about "application of the rule of law" - that is why they study law. Mediation is rightly about compromise but it also hides the dispute by gagging it in confidentiality, ie privatises the dispute by covering it up. Currently lawyers, barristers and judges are doing both jobs. Litigation and arbitration are polarised concepts to mediation - they should not be processed in the same system as one undermines the other. They are naturally opposites and always will be on essence.
Now, should I adopt an attitude of not caring less anymore ...
WHY COMPROMISE WHEN YOU CAN SETTLE OUT OF COURT! ITS NOT ABOUT COSTS its about justice ...
posted by Lesley McDade at 1:37 pm
2 Comments:
There are cases when mediation is an excellent alternative to the legal processes but it doesn´t work for all cases and there are times when you know that a compromise is a step in the wrong direction.
Jean Smith
Mediation Researcher
Thanks for your comment Jean and your link to some useful information on mediation.
When I worked for S J Berwin & Co, I sat in on a mock mediation conducted by David Shapiro of Jamsendispute. He claims he and five others brought mediation to America and he was over here as part of the Woolf reforms bringing mediation to the UK.
Whilst I am happy for mediation to exist in a democratic society, I argue that lawyers, barristers and judges should not be involved in it as their job and purpose is the application of the rule of law. Mediation undermines the rule of law as the remedies are wider. I would like to see litigation, arbitration and mediation treated correctly in society, but I live in hope, at least academically my arguments are pure original thought.
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