The ASM PLUS Civil & Commercial Team
Team Convener and ASM Plus Director
Why use the ASM Plus civil and commercial dispute prevention and resolution service?
This team is convened by Paul Sandford, the ASM Plus Director. The team comprises Francesco Albertelli, Ben Beaumont, David King, Matthias Neuenschwander, Brendan Schütte, Roy van den Brink Budgen and Anthony Wooding. We assist clients by resolving their business and commercial disputes quickly and cost effectively thereby saving considerable amounts of time and money that can be better used to generate turnover and ensure good management. We offer our services in English, French, Spanish, German and Italian. Our team members have extensive ADR and business experience in all parts of the world including Europe, the Americas, Hong Kong, New Zealand and the West Indies.
Instructing a member of the ASM Plus commercial team could save 95% of the cost of going to court or to a tribunal. We are very flexible and proactive and because we are committed to the principles of Early Dispute Avoidance (EDA) and Early Dispute Resolution (EDR) we will always carefully consider the best option for individual clients and advise accordingly.
We have a diverse and multi-talented professional team who have both ADR and business experience and can therefore ensure that we select the right person for you. Additionally, we are supported by the members of the four other ASM Plus teams including the Workplace and Employment Team that is convened by the highly accomplished Brendan Schütte
Mediation and in appropriate cases, Co-Mediation are generally recognised as excellent options for promptly addressing the complete spectrum of civil disputes ranging from high-value complex matters to those of more modest proportions. Depending on the geographical situation, the incidental pre-mediation work can be performed online, in order to save both time and contain costs.
Arbitration is an option for the resolution of disputes outside the courts and our team includes two highly regarded international arbitrators. Because this process is faster than going to court, even in very complex disputes it is much more cost effective and there are a number of other advantages. It is particularly effective as a means of resolving multi-party or cross-border disputes and is a much more efficient way of addressing disputes than the cumbersome court processes that are offered in most jurisdictions.
Adjudication is often seen as an alternative to arbitration and is acknowledged worldwide as a flexible, very effective form of ADR. It achieved prominence in the UK following the passing of the Housing Grants, Construction and Regeneration Act 1996 (the 1996 Act). ASM Plus offers a timely, cost-effective adjudication service which is particularly well-suited to the resolution of building and engineering disputes.
Facilitated Meetings. As part of our commitment to both EDA and EDR we offer the option of a roundtable meeting or discussion as an alternative to our other services. This may be an excellent, highly cost-effective option for use in cases where there is already a level of agreement or where there are preliminary issues to be addressed and resolved.
Contact Us. At first instance please contact our Director, Paul Sandford for a confidential without obligation discussion. He will be delighted to talk through matters with you and will arrange for a member of the team to contact you and advise on the best way forward.
ASM Plus provides a cost effective and time saving dispute resolution service. The traditional dispute resolution options of consulting lawyers and other professionals, engaging in very protracted negotiations and going to a court or tribunal are expensive and time consuming.
Even before the start of the COVID-19 pandemic, the UK courts and tribunal services in particular were badly underfunded and, in many instances, litigants were waiting for as long as two years for a court hearing. Since the onset of the pandemic the already quite unacceptable delays have got even worse.
The stress, pressure and uncertainty that inevitably result from all of this invariably prompts many people to enter into so called negotiated up but in reality, very unsatisfactory compromises that leave all concerned very dissatisfied. In many instances, business, professional and personal relationships that may have taken many years to establish can be destroyed, literally overnight.
To address this highly unsatisfactory situation ASM Plus delivers its dispute resolution services promptly and efficiently. We are committed to helping you resolve your issues and difficulties at the earliest available opportunity.
There is another compelling reason for parties who are in dispute or potentially in dispute to use our services. Although in most jurisdictions an individual party cannot be compelled to mediate, if they refuse to do so without a very good reason, in many cases a court will have the power to impose very severe cost sanctions regardless of whether they “win” prevailed or not. Since the advent of the pandemic courts have been actively encouraging mediation and those who reject it may find themselves heavily penalised in court costs.
Using our first-class internationally focused mediation, facilitated discussion, coaching and training services will:
- Give you complete control over the dispute resolution process – your consent is required every step of the way
- Save you, your business interests and possibly your family members hundreds or thousands of pounds, euros or dollars
- Save hours of your valuable time and that of your employees and associates that can be put to much more productive use
- Save you hours of form filling and bureaucratic delays
- Avoid the stress and uncertainty of a court hearing
- Save you immense amounts of upset, worry and anguish
- Help you with the all-important process of dispute avoidance which helps to ensure improve profitability, engenders good management and reduces the likelihood of contracted and costly disagreements arising
- If disputes or disagreements arise, we can help you to resolve them very promptly and at reasonable cost
- Help you get the very best out of your business or commercial enterprise
ASM Plus’s highly skilled civil and commercial dispute resolution experts comprises – Paul Sandford, Francesco Albertelli, Ben Beaumont, Menahem Kanafi, David King, Matthias Neuenschwander, Russell Shackleton, Brendan Shutte and Anthony Wooding.
Our team members come from a wide variety of backgrounds including finance and accounting, business, international diplomacy, the legal and advisory sectors and the voluntary sector. They offer their skills and expertise in all types of civil case including but not limited to commercial, shareholding and financial disputes, property and landlord and tenant issues and personal injury matters. All the members of our expert team are completely neutral, and encourage their clients to be frank and to look at matters objectively and dispassionately. The parties are in control of the decisions made which helps to ensure that confidentiality is maintained and that mutually acceptable settlements are reached.
No case is too big, too small or too complicated and as part of the ASM Plus ethos of offering a joined-up service there is close liaison with our employment, medical and sports teams.
ASM Plus Testimonials:
“The mediators without any doubt added very significant value and helped us avoid what would have been potentially very significant legal costs. Without their help I doubt we could have got a sensible conversation between us and the defendant”.”
“Excellent Service from a dedicated and well-informed group of individuals! Certainly, recommend their services!”
“Expert practical advice from an approachable team of professionals with experience of responding to dispute resolution.”
ASM Plus’s Civil and Commercial services
ASM Plus offers:
- For all enquiries from both existing clients and those who have not approached us before, the ASM Plus Director, Paul Sandford, will arrange an initial free without obligation telephone call or a Zoom or Skype conversation.
- Mediation, a process by which parties in conflict come together to resolve existing disputes and disagreements and discuss mutually acceptable agreements with the assistance of an impartial mediator facilitating the discussion and negotiations. The mediator is not a judge or arbitrator and any agreements reached are only with the full consent of the parties. Such agreements are enforceable as any other legally binding agreement.
- Facilitated Meetings which are a very good alternative to mediation. They are used in cases where there may be some agreement but the parties need help from an independent facilitator to ensure prompt resolution.
- A unique family oriented Critical Thinking (CT) option provided by an internationally recognised and highly accomplished CT expert. The service is offered alongside facilitated meetings and works very effectively in helping people to ensure that they remain focused and so can concentrate on the significant issues.
- A dispute avoidance option which is designed to help businesses plan ahead and negotiate clear, workable contracts and agreements and avoid disputes and disagreements arising in the first place. This involves including route cause analysis and dynamic conflict resolution procedures from the outset, often completely avoiding expensive and disruptive litigation altogether.
- Arbitration is an option for the resolution of disputes outside the courts and our team includes two highly regarded international arbitra-tors. Because this process is faster than going to court, even in very complex disputes it is much more cost effective and there are a num-ber of other advantages. It is particularly effective as a means of re-solving multi-party or cross-border disputes and is a much more effi-cient way of addressing disputes than the cumbersome court pro-cesses that are offered in most jurisdictions.
- Adjudication is often seen as an alternative to arbitration and is ac-knowledged worldwide as a flexible, very effective form of ADR. It achieved prominence in the UK following the passing of the Housing Grants, Construction and Regeneration Act 1996. ASM Plus offers a timely, cost-effective adjudication service which is particularly well-suited to the resolution of building and engineering disputes.
- Coaching and Training Services – Our competitively priced, specifically devised online courses and workshops are designed to help organizations and individuals, not only to improve personal competence and skills but to be better equipped to work effectively in spheres such as a dispute avoidance, negotiation, customer relations, complaints handling and dealing with internal organisational and disciplinary actions. Accordingly, our training modules will help to ensure sustainable business development with increased efficiencies ultimately, improved profitability.
- Our business advisory services include dispute route cause analysis, contract and process risk assessment and reviews, fraud risk assessment and contract oversight and governance system reviews.
Contact Paul Sandford now for an initial discussion and to be referred to one of our expert associates. Paul will help you decide on the best option.
Our services are provided on-line using Zoom and when the opportunity arises, face-to-face. To aid the process we are also able to provide electronic document signing and virtual white boards for each party to aid their thinking process through the mediation process.
What is mediation and what are its advantages?
Mediation is a process by which parties in conflict come together to resolve disputes and negotiate mutually acceptable agreements with the assistance impartial mediator facilitating the discussion and negotiations. It is very flexible and is geared to the needs and wishes of the parties. They, rather than the mediator make the decisions and any agreement reached is voluntarily decided by them.
The mediator helps those involved in a mediation to remain focused and ensures that all concerned have an opportunity not only to state their points of view but to listen to what others have to say. The process is flexible and very much geared to the needs and wishes of the parties.
Facilitated meetings in civil and commercial dispute resolution with the special ingredient of Critical Thinking
In some family cases, a facilitated meeting is a very effective alternative to mediation. Like mediation, it can relieve you from the stress of paperwork and save you considerable amounts of time and money. Whereas mediation is generally used for helping disputing parties who have a significant level of disagreement, facilitated meetings in which the parties meet face-to-face are a very good option in circumstances where:
- there may already be some level of agreement
- a disagreement may be at an early stage and those involved have recognised that there is an issue and want to try and get it resolved before things get out of hand
- they may wish to preserve an existing personal or business relationship
The special ingredient that ASM Plus provides as part of Facilitated Meetings is Critical Thinking (CT). This has been very effectively developed and used in the corporate, private, public and educational sectors by one of the ASM Plus family team members, Dr Roy van den Brink-Budgen.
The important role of Critical Thinking
By stressing the value of clear thinking, CT will encourage the participants to:
- focus upon the central issues and the way in which they see them;
- look carefully at the underlying assumptions they are making in the way in which they see these central issues.
By focusing on possibility thinking, CT will encourage the participants to think of and to consider possible options beyond those that they might already have put ‘on the table’.
By focusing on the notions of open-and fair-mindedness, CT will encourage the participants to see the value of giving full consideration to the positions that are being presented (including those which are causing considerable disagreement).
By seeing the value of a reasoned facilitated discussion (avoiding inconsistencies, contradictions, unsupported claims, and other weaknesses in reasoning), the participants will move towards well-reasoned positions.
By emphasising the significance of self-reflection, CT will encourage the participants to literally stop and think in order to actively consider how any claims they are making need to be seen in relation to any counter-claims being made (including the giving of examples and other evidence).
By making use of the power of hypothetical thinking, CT encourages the participants to look at alternative scenarios in a productive way by using a creative ‘What if?’ approach.
By using analogies, CT encourages the participants to look again at certain aspects of the discussion by employing analogies (‘Could we see this in a different way – like this, for example…? Isn’t this like something else…?).
Online mediation and facilitated meetings
ASM Plus’s experience is that Zoom works very well. It has ensured that disputes and disagreements that would otherwise fester or not be addressed can be dealt in a very short space of time. Particularly in periods of lockdown, there is no travel and waiting time and safety are assured. Confidentiality is a critical aspect of mediation we find that using Zoom rather enables one of our mediators to act as Zoom administrator and ensure that the meetings of the separate parties remain confidential and the parties do not come together until all are in agreement to do so.
Zoom software is very easy to use. All that is required is the following:
- a good quality Internet connection (we recommend where possible that you use a wired connection but this is not essential)
- access to a good quality PC, laptop, tablet or smartphone
- a good quality microphone and/or headset
- a quiet and private indoor location
- access to an e-signature facility or an acceptable alternative
- The mediator will always provide a contact number so that they can be sent a text to enable a party to re-join the Zoom meeting in the event that there are any interruptions with internet connectivity
Because the process is controlled by our mediator, facilitator or trainer, the parties do not need to have high levels of technical expertise in order to participate. Parties to mediations are strongly advised to prepare well beforehand and ensure that they are fully familiar with any documentation that has been disclosed in advance. ASM Plus will gladly provide training and even a short simulation before the actual mediation session if a party or parties desire to familiarise themselves with the platform.
THE ASM Plus Civil and Commercial Team Members
Paul Sandford, Francesco Albertelli, Ben Beaumont, Kathleen Frascona, Menahem Kanafi, Arlene Kiefer, David King, Matthias Neuenschwander, Russell Shackleton, Brendan Shutte and Anthony Wooding.
Paul Sandford – Director of ASM Plus, Mediator, Facilitator, Tribunal Judge and Solicitor.
“Paul is a highly skilled professional mediator. He helped us resolve a really difficult issue with skill and humour. I can’t recommend him highly enough.”
“I have known Paul for many years and I have benefitted greatly from his knowledge and experience. Paul displays the utmost professionalism whilst remaining very approachable and achieving the best results for his clients. The breadth of Paul’s expertise and knowledge is very impressive and ensures that he is able to quickly grasp the key issues, salient points and find the best way forward to achieve optimal solutions and results.”
Francesco Albertelli – Highly accomplished member of the ASM Plus team and a skilled ADR practitioner, commercial lawyer and linguist.
“Francesco is a very skilled mediator and arbitrator and he is able to solve complicated matters with capacity and sensibility. I highly recommend him as a commercial mediator.”
Kathleeen Frascona – a highly accomplished nationally certified US civil and family mediator, developmental consultant, trainer, negotiator and keynote speaker.
“Kathleen assisted our business two-fold. First, she mediated for us and our client. Professional, impartial, allowing each party to speak and not only be heard, but understood. We were able to leave the Mediation confident in how productive it was and secure in the professional working agreement that was made. Kathleen also negotiated, on our behalf, with another client who was refusing to pay the invoice they accrued. We can honestly say that if it was not for Kathleen, we would have lost our family business.”
Menahem Kanafi – Certified German commercial and employment mediator, former career diplomat and attorney licensed in New York and Israel with decades of international trade experience.
“I wish you could mediate all of our cases.”
Arlene Kiefer – is a longstanding Alternative Dispute Resolution expert specialising in mediation, training and conflict coaching.
“It is a privilege knowing Arlene, who is eveready to take up challenges with a smile on her face. She has all the skills and abilities of an advocate and a negotiator. As an APD member, Advocate PRIME DISPUTE, Arlene already has essential characteristics – negotiator, analytical, risk taker, responsive and focused. I would recommend Arlene for mediator and advocate roles.”
David King – Civil mediator and accountant with extensive financial and taxation related experience and expertise.
“A successful mediation aided very well by Mr King.”
Matthias Neuenschwander – Switzerland based highly accomplished civil and commercial mediator, adjudicator and civil engineer.
“I highly valued his focused, structured and pertinent approach in a very sensitive area. He managed to have panel experts with different views communicate clearly and to the point. He kept the overview at all times, involved invited parties and adhered to the time constraints.”
Russell Shackleton – Mediator, Facilitator, Specialist in Contractual Evaluation, Financial Specialist, Business Consultant, Auditor, Investigator, Trainer and Coach
“As the leader of the project, Russ’ extensive experience in consulting techniques and cli-ents’ requirement led the team to achieve its goal. He has an excellent ability for solving complex problems by applying simple deductive reasoning.”
Brendan Schutte – UK and Irish accredited workplace mediator, investigator, trainer and coach with particular expertise in the field of neutral evaluation
“Brendan is a highly skilled, experienced and talented mediator, trainer and investigator. I have known Brendan to be a considerate and loyal colleague.”
Roy Van den Brink-Budgen – Commercially Focused Critical Thinker, Trainer and Coach.
“The importance of clear and productive thinking that using a critical thinking approach can deliver was very much highlighted in Roy’s work with us”
Anthony Wooding – Mediator, Facilitator retired Solicitor and Lecturer in Dispute Resolution.
“Anthony is steeped in expert knowledge and experience and he never pretends to know anything about which he is not completely confident. He has a strong sense of what is right and wrong. He has extremely high ethical standards and a very finely tuned sense of integrity. The results of his work were precisely what was both wanted and what he said could be achieved – in difficult moral and legal circumstances.”
What are the time and costs savings of using the services offered by the ASM Plus Civil and Commercial Team?
As our case studies demonstrate, engaging the ASM Plus Civil and Commercial team will save considerable amounts of time and money and ensure that the stress resulting from disputes and disagreements will be significantly reduced.
Although mediators and facilitators do not provide a substitute legal advice service. Clients may need to take legal advice from time to time and may even be encouraged to do so where appropriate but the bulk of the work and all of the decision-making will take place during the mediation.
In appropriate cases, facilitated meetings can result in resolutions being achieved even more quickly than where a case goes to mediation. The critical thinking related expertise offered by our facilitators provides additional help to parties to resolve their differences and move forward with a clear mutually acceptable strategy in place.
Case studies demonstrating how ASM Plus’ civil and commercial dispute resolution services can save you time and money, improve profitability and help maintain good business practice
A contractual matter that was swiftly resolved by an ASM Plus civil mediator
The guidance and facilitation provided by an ASM Plus mediator resulted in court proceedings that given the disposition of one of the parties, would have become very costly and protracted, resulted in a swiftly convened me-diation and a timely resolution. This was not only acceptable to both parties but meant that a long-established business relationship from which both had benefited was preserved with their reputations intact.
How Mediation Changed the Outcome:
In the course of the mediation process, the ASM mediator ensured not only that both parties had their say but that they listened to one another. Ac-cordingly, they were able to look beyond the rhetoric and appreciate that continuing with the court case would result them waiting for up to two years for a final judgement. They were also able to realise how time and money they would have to spend and for the first time understood that their mutu-ally beneficial business relationship would be lost and their reputations
Read more to learn exactly what happened and how ASM Plus helped:
Harvey is the chief executive and managing director of Haystack Ltd, a modest sized but very successful niche manufacturing company. Over 20 years he built the business up to the point that it was valued as being worth in excess of £100 million. Harvey is a rather vexatious character with a liking for litigation and tends to get results by riding roughshod over other people, not least suppliers and competitors. He has a lot of well-established business contacts and is not averse to bad mouthing people whom he doesn’t like.
Harvey enters into a new contract worth many thousands of pounds with Savealot Ltd for the supply of essential raw materials. Harvey is aware that Savealot, whose MD is Spencer, is perhaps not the most reliable of companies and in manufacturing circles it does not have the highest of reputations.
Whilst there is nothing wrong with the materials that it provides, Savealot’s mismanagement results in late deliveries and Haystack incurring some relatively modest but not insignificant financial losses. Also, Savealot’s invoicing system is unreliable and Harvey receives a sequence of invoices that are quite patently incorrect.
Incensed by the delays and inefficiency, with reference to an obscurely worded standard form agreement that he insists all his suppliers sign but no-one really understands, Harvey deduces that Savealot is in “fundamental” breach of contract and refuses to settle a number of invoices worth £19,000. His response to a telephone call from Spencer is “so sue me!” Both “sides” instruct solicitors, legal proceedings are started, and much to Spencer’s annoyance, Harvey gives a conflated version of events to anyone who will listen.
In his heart of hearts, Harvey is all too aware that he has perhaps gone too far. Although he is annoyed, he is aware that it would have been quite easy for him to approach Spencer informally and suggest that the invoices should be amended. Equally he is well aware that Savealot provide good quality materials at a very competitive price whereas other suppliers do not.
Spencer is all too aware that he is responsible for a badly managed company and that costly litigation could also result in even more adverse publicity than he is currently receiving from Harvey’s ad hoc badmouthing.
Eventually the parties’ lawyers, who have repeatedly advised their respective clients that the costs of pursuing litigation are out of all proportion to the true value of the dispute, persuade them to use the ASM Plus small disputes claims resolution service and within a week of initial contact having been made an online mediation is arranged. This process prompts both Harvey and Spencer being encouraged not only to address each other’s possible failings but also to look at their own.
The upshot is that Harvey, who has just been presented with a quite substantial interim bill for legal fees considerably in excess of his share of the modest charge for the mediation, agrees to pay Savealot’s invoices less a mutually agreed reduction of £3500.00 to account for Haystack’s losses. Informally, Harvey and Spencer shake hands and agree that for the duration of their current business arrangements, they will stay in touch and will be upfront with one another. Additionally, following a suggestion from the mediator they both agree to review their contractual arrangements and redraft their “standard agreement.” Harvey comes to realise that a fair and transparent system of working is preferable to what has just transpired.
In this not untypical case, initially neither party wished to accept responsibility for any wrongdoing and focused entirely on the failings of the other. Neither Harvey nor Spencer wanted to be seen as losing face and initially, each thought that agreeing to mediation would be construed as a sign of weakness.
All concerned found the mediation process to be very constructive and matters were resolved within the three-hour time limit. It was arranged at the convenience of Harvey and Spencer and they did not incur any travel or waiting time.
Harvey noted that it took much less time to prepare for the mediation than his court case and that the costs incurred were a fraction of what he had thus far paid his solicitor. He also thanked his solicitor for giving him the appropriate advice and promised to instruct him again if he needed to.
Spencer is pleased at the outcome, not least because he is able to maintain an economically beneficial relationship with a good client and the damage to his company’s reputation is minimised. Equally, he finds himself with time on his hands that can be devoted to running his business and generating income that he might otherwise not have had.
A facilitated meeting in a case involving a small, niche family company. Here we demonstrate how a facilitated meeting can effectively resolve a significant dispute in a family company and save considerable amounts of time and money.
The guidance and facilitation provided by an ASM Plus mediator resulted di-rectors of a small, well regarded company being able to swiftly and effec-tively address the difficulties they had encountered following an ostensibly ill-conceived decision to employ a family member who acquitted himself badly. This family member had unscrupulously threatened to issue court proceed-ings that could have cost the company thousands and affected its viability and profitability.
How Mediation Changed the Outcome:
In the course of the mediation process, the ASM director ensured not only that both parties had their say but that they listened to one another. Ac-cordingly, they were able to look beyond the rhetoric and appreciate that continuing with the court case would result them waiting up to two years for a final judgement. They were also able to realise how time and money they would have to spend and for the first time understood that their mutually beneficial business relationship would be lost and their reputations.
Read more to learn exactly what happened and how ASM Plus helped:
Siblings Hazel and Jo are highly accomplished software experts and computer engineers who set up their own niche company, Prime Solutions Ltd, approximately four years ago. Because neither of them is very good at either management or marketing, two years ago they decided to engage Hazel’s brother-in-law Martin as “director of operations” and gave him a vaguely drafted brief to “sort out the accounting system” and “implement and operate a proper marketing strategy”. Martin was given a generous commission-based remuneration package and a 10% shareholding in the company with an option to purchase further shares.
Some members of Hazel and Jo’s family see Martin as a highly accomplished and capable professional while others think that he is “a bit of an operator” who cannot be trusted. Hazel and her husband have misgivings about his appointment but Jo’s insistence holds sway.
However, Jo subsequently comes to agree with her sister that Martin’s appointment was a bad move. It turns out that the company accounts are in a sorry state and, whilst he has worked quite well with the few existing business contacts that Hazel and Jo had established before his appointment, Martin does not introduce any new clients.
Discussions about Martin’s perceived poor performance become heated. Family members who up till now have nothing to do with the company start venturing opinions and, fearful that their dispute with him will escalate, Hazel and Jo tell Martin that his contract is terminated “forthwith”.
Never one to take things lying down, Martin threatens legal proceedings and says that he will report the company to “Companies House” and what he terms “the financial regulator”.
Informally, a solicitor friend of Hazel’s advises that if this matter did go to court then the costs could “easily” exceed £100,000 plus VAT. The company accountants are very concerned about the impact that a protracted legal dispute would have on the company’s finances and reputation so, at their suggestion, Hazel, Jo and Martin all agree to go to mediation.
In the course of initial brief discussions with the parties conducted by the ASM Plus director, it becomes apparent that although there are a number of areas of disagreement, there is some common ground. It is clear that in reality none of the interested parties has an appetite for costly litigation and they are all concerned to ensure that their reputations remain intact. Hazel and Jo accept that they are going to have to buy Martin out. In reality Martin is happy to accept a “satisfactory” payoff and will bow out gracefully.
Accordingly, instead of mediation, a day-long facilitated meeting costing a total of £1250 plus VAT is suggested. A morning’s discussion and negotiation results in an agreement being signed during the afternoon that all parties are happy with. They take the opportunity offered to speak plainly and openly and guided by the facilitator, focus on the key issues. In so doing they save themselves hours and hours of time and avoid the hundred thousand pounds plus costs bill that Hazel’s solicitor friend warned of.
As part of the agreement Martin relinquishes any right that he might have to purchase company shares and the company accountants then take the opportunity to very quickly sort out the accounts without any interference from him.
Hazel and Jo had come to realise that not only were they hasty in making Martin’s appointment but that the attendant negotiations were not very well conducted and that time “spent” at that stage and would have been “time well spent. “
An Unfair Dismissal Case that belatedly went to mediation. It was resolved because an employer took the opportunity afforded to “think outside the box” but should have been resolved much earlier.
A cynically conceived employment tribunal case that had already consumed unwarranted amounts of time and money and was effectively underwritten by legal insurance policies was ultimately resolved following the parties being very belatedly advised to mediate. Although a mutually acceptable settle-ment was reached, this case study amply demonstrates the opportunities lost because mediation was not advised and/or agreed to at a much earlier point in time. There was no need for the parties to have waited until the Em-ployment Tribunal instigated mediation, sometimes after the relevant pro-ceedings have been issued.
How Mediation Changed the Outcome:
Because, perhaps for the first time the parties confronted the issues, fully considered the weaknesses and their respective cases and realise that repu-tations really were on the line, matters were resolved. However, notwith-standing an ultimately satisfactory outcome, an objective third party might reasonably deduce that this was a case of “too little too late”. ASM Plus in-volvement at a much earlier point would in all probability have considerable expenditure in time and money that is referred to below.
Read more to learn exactly what happened:
For some years Abraham, Martin and John worked in the accounts department of a medium-sized public authority that had been subject to quite severe financial constraints. Barring Abraham whose last annual appraisal was inexplicably favourable, over the years, their standard of work was at best considered to have been barely adequate. They were the subject of repeated written warnings, had poor attendance records and were considered by many of their colleagues to be disruptive influences.
On top of any previous concerns the three co-workers were recently discovered to have been downloading wholly inappropriate material from their work PCs during office hours hence them being summarily dismissed for what their dismissal letters termed “gross misconduct”. On the face of it, it appeared that the authority had acted quite correctly and had thought that the possibility of unfair dismissal proceedings was remote. However, the investigative process that was implemented was in some respects deficient. Also, on at least two occasions prior to their dismissals, a senior manager spoke very inappropriately to Martin and John.
Unbeknown to the authority, all three of the dismissed co-workers had previously taken out legal insurance policies with different companies and were therefore able to instruct solicitors to issue unfair dismissal proceedings in the Employment Tribunal. In their statement of claim, as well as mentioning the senior manager’s conduct and the defects in the investigative process, they claimed that their alleged gross misconduct was consequent on the authority’s very lax managerial procedures which purportedly encouraged a culture in which their behaviour was allowed to flourish. They also contended that they were being scapegoated and Abraham highlighted his recent appraisal.
In the course of reporting to the insurance companies that now found themselves underwriting the three co-worker’s tribunal proceedings, the firm of solicitors that had issued the Employment Tribunal proceedings advised that even though their clients were by no means totally innocent, the authority’s procedures were deficient and that “a substantial award of compensation” could reasonably be expected.
At the outset, the authority had indicated that it would contest the unfair dismissal claims brought against it. Although its senior management was mindful that it could ill afford costly legal proceedings, it was concerned that any indication of willingness to compromise on its part will be construed as weakness. Equally, the authority was all too well aware that any form of settlement might encourage others to disingenuously take proceedings against cash strapped public authorities in the hope of extracting settlements.
As matters progressed, the correspondence between the parties’ solicitors became more and more confrontational. Even though it had been appropriately advised by its solicitors, the authority ignored any possible concerns about its own failings. Equally, Abraham and his co-claimants focused on these issues and some might say rather conveniently put to one side any considerations about their past conduct.
Some months after the tribunal proceedings were issued, a mediation was convened. It was facilitated by an Employment Tribunal judge and matters were resolved. During the mediation one of the authority’s senior managers stated that he would “lay his cards on the table”. He accepted that there were deficiencies in the authority’s procedures and confirmed that whatever else, there was no justification for Martin and John to have been addressed in an inappropriate manner.
However, during a mediation session in which all interested parties were present, this manager also made it abundantly clear that irrespective of any failings on the part of his colleagues, Abraham, Martin and John had behaved very badly indeed and that technical deficiencies aside, their dismissals were entirely warranted. He also emphasised that if the matter went to a public tribunal hearing, the full extent of their wrongdoing would be made public and that they would never ever be able to obtain any form of meaningful employment.
A full and final £750 per claimant, “take it or leave it” offer was put to the three co-workers. Because the manager was able to speak to them in a direct and forthright manner, they finally grasped that their former employers “meant business” and perhaps very sensibly accepted what was on offer.
As one might expect, the mediator maintained her neutrality. However, subsequently, in the course of assisting the parties’ solicitors to draw up terms of settlement she politely but firmly suggested that the modest nature of the settlement was wholly disproportionate to the huge amounts of time and money that had been expended and question why the case had been allowed to drag on for so long. She highlighted the issue time and effort solicitors’ costs and asked the parties to consider how much time and effort they had put into the case.
In the course of acting for the authority, its solicitors rendered a number of large bills. On top of this the authority’s senior management devoted considerable amounts of time to the case that could have been better used and because they were material witnesses, a number of its employees had to instruct their work in order to give statements to the solicitors. At a later date the authority was very heavily criticised by its auditors. At least two of its managers rather ruefully reflected that their subsequent annual reviews included very strongly worded criticisms.
The insurance companies who funded the employment tribunal proceedings on behalf of Abraham, Martin and John were also presented with by no means insignificant solicitors bills. On top of this, a good deal of their managerial and clerical time was taken up in keeping abreast of matters, liaising with solicitors and ensuring that the requisite procedures were implemented and followed.
Even a cursory analysis of what transpired clearly demonstrates that a number of interested parties including Abraham, Martin and John’s legal insurers could and should have “taken the bull by the horns” much sooner. They really should have used the very flexible medium of mediation to resolve matters, possibly even before the unfair dismissal proceedings were issued.
USING CRITICAL THINKING WITH A BANK’S DATA ANALYSTS
A large international bank had concerns that its data analysts, though highly competent in the technical aspects of data analysis, were not necessarily sufficiently skilful in the creative interpretation of the data.
As a result, a tailor-made focus upon interpretation was seen as being of considerable value. The day used a wide range of material, including evidence drawn from a number of different economic contexts such as stock-exchange movements, retail statistics, and predictions in the tech industries. This evidence was initially used in order to demonstrate the significance of how assumptions (or taken-for-granted beliefs that are not made explicit) that are made in the interpretation of the data need to be examined critically.
This initial work on assumptions was then further developed by looking at how one might use this focus to focus on possibility thinking by looking for and at alternative explanations. In this way, the analysts were encouraged to critically examine evidence which is itself, through familiarity or frequency of appearance, taken for granted.
Various questions were raised and developed as a result.
- What more do we need to know?
- If we can’t get this information, what effect could this have on our judgements?
- How do we judge what is relevant in a scenario?
- How do we judge what is adequate for making an initial judgement?
- How can we discount existing biases, including impressions, estimates, and selection of data?
- How can we take account of the confirming-evidence trap by which evidence is welcomed if it confirms our initial position (or is interpreted to do this) (and side-lined or even rejected if it does not)?
At the end of the session, participants reported that they could see the value of actively using a focus on possibility thinking. The questioning approach which is such a central aspect of critical thinking was seen as a very productive one, in that it was able to fruitfully inform the nature of ‘analysis’ in the task of data analysis.
This appreciation of the value of possibility thinking for the work of these data analysts was subsequently reinforced by the commissioning manager.