HAVING spent nearly seven years listening to employers and employees doing battle in the Island’s courts, Hilary Griffin has a greater insight than most into how workplace disputes can escalate into both emotionally and financially draining situations.
The employment and discrimination lawyer practised in London for ten years before moving to the Island with her family in 2014 and taking up the role of deputy chairman of the Jersey Employment and Discrimination Tribunal.
‘I then became chairman in 2017, which effectively made me head judge,’ she said.
Admitting that the range of cases made the job ‘fascinating’, Hilary also felt a sense a sadness that each conflict had spiralled to the point where a day in court became inevitable.
‘It was fascinating because every single case is different but it was also incredibly sad to see employers, employees and witnesses caught up in a conflict in which neither party could be assured of the outcome,’ she said. ‘In some cases, the parties involved had been close friends for 20 or 30 years, building a business together before falling out and, while judging the cases, I couldn’t help thinking: “How have we got to this stage?”
‘I was also convinced that, of all the cases which went to a final hearing, 75% of them didn’t need to be there. If the conflict had been addressed at an earlier stage, or if a neutral, independent person had been able to facilitate discussions between the parties, I am sure that many of the cases we heard would not have come to court.’
And it was that conviction which, in 2020, encouraged Hilary to set up HG Consulting, offering employment training and mediation services to Island businesses.
‘If you engage a lawyer to represent you at a tribunal, he or she will often say that you have a 50/50 chance of success or a 60% likelihood of winning your case but, in reality, they don’t know the odds,’ she said. ‘They might think they have a strong case but that doesn’t necessarily translate into a success for their client. With mediation, though, the statistics are clear: 80% of mediated disputes succeed.’
Despite this impressive figure, Hilary says that this tool is used in only around 5% of all workplace and employment disputes.
‘Mediation should be a no-brainer,’ she said, speaking during International Mediation Awareness Week. ‘Not only does it have the potential to avoid a tribunal but it is a cost-effective and quick solution. Whereas a tribunal might take six months before you reach the final hearing, mediations can be resolved within a fortnight.’
But perhaps the most powerful argument for mediation, says Hilary, comes from the control it gives both parties over the outcome and the greater chance of a successful resolution it offers.
‘The longer a situation goes on, the more acrimonious it tends to become,’ she reflected. ‘If you address the conflict quickly and go into mediation, you have a much better chance of mending the relationships and defusing the disputes before they become really divisive.’
In many cases, Hilary adds, it is people’s natural aversion to conflict which exacerbates the problems.
‘None of us likes conflict so I think that, often, problems escalate because employers or managers do not deal with the issue while it is in the early stages,’ she explained. ‘They tend to push it aside until it reaches a point where it can’t be ignored any longer, perhaps because the employee has filed a grievance. While an early intervention could have prevented this stage, mediation remains an effective tool after a grievance has been lodged.’
And while there is a cost attached to such a practice, Hilary says that this is nothing like the expense which employers can face when disputes rumble on and potentially end up in court.
‘We are not just talking about financial expenditure but also time and staff morale,’ she added. ‘If a grievance is filed, a huge amount of time goes into investigating this, while the process is also likely to affect team morale, which can also impact productivity.
‘Then you have the cost of recruitment of one, or more, of the people involved in the dispute. If they then take their case to a tribunal, you have not only the legal costs to cover but also all the time spent both in the tribunal and preparing all the information and witness statements beforehand. And, depending on the judgment, you may have to pay compensation to your former employee.
‘Just as importantly, particularly in somewhere like Jersey, there is the reputational damage suffered by having your company name associated with a tribunal, which could also affect your future recruitment and staff retention.’
In contrast, says Hilary, mediation takes place behind closed doors and offers a range of creative solutions.
‘I have heard it said that people take their former employers to a tribunal because they are looking for money or want their day in court but that is nonsense,’ she said.
‘If a case comes to court, it’s because the individual is deeply hurt and, whether it is a discrimination or employment case, they have come to the tribunal because that is the only way of getting some closure. And, if they come to a tribunal, it is very black and white. You either win or lose and, if you win, you will get some money. But you have no control over the outcome. In going to a tribunal, you abdicate responsibility for the outcome of your own dispute.
‘In mediation, you are responsible for your own outcome and I think this is partly why mediation works. Outcomes that are forced on people don’t last because the individuals haven’t bought into the process.
‘With mediation, though, they not only buy into the process but, through the dialogue, they come to understand other people’s perspectives. This helps them to find a solution which works for both parties.’
While mediation takes up much of Hilary’s time, she also subscribes to the ‘prevention is better than cure’ philosophy, and offers employment and discrimination law training.
‘A lot of disputes would be avoided if people had a better understanding of topics such as discrimination, diversity and inclusion,’ she said. ‘What is discrimination in the workplace? What does it look like? How does it feel? There are so many loaded terms, such as racism, in discrimination law.
‘The training is about helping people to understand how they manage themselves in the workplace and how people from different ethnic groups, or with various disabilities, live on a day-to-day basis and how a workplace can be opened up to support that.’
Complicating this, Hilary explains, are the unconscious biases, which influence a person’s views and actions.
‘Most people, for example, would not consider themselves to be racist and yet race, gender, disability and pregnancy discrimination remains common,’ she said. ‘Race discrimination, in particular, often stems from various unconscious biases so we need to become more aware of these biases and question our decision-making processes.’
Recognising and challenging such biases can, Hilary says, not only change the way individuals view situations but can also be critical in resolving disputes.
‘Because a lot of the behaviour is unconscious, people are not aware that they are doing it,’ she said. ‘The mediation is therefore a way of finding solutions instead of attributing blame. The mediator asks the probing questions and facilitates the discussions, which help them to reach those solutions. And often a key part of that solution is the little word – sorry – a word which people often find very hard to say.
‘We all perceive situations differently. One set of facts, presented to people from different backgrounds, life experiences and with different unconscious biases, will look very different to each person. Therefore, a genuine heartfelt apology is tremendously powerful, as is the chink of light that comes through the mediation process. And I think that’s what I love most about mediation.
‘There comes a point in the process when people suddenly see a way ahead. And, even if they don’t find a solution straightaway, solutions often follow as the parties involved have listened and thought about their behaviour instead of pointing fingers at other people.
‘If you go a tribunal, things become very personal and people lash out, saying things which are hurtful and difficult to get over. If you go to mediation, you have the chance to hear other people’s views, understand their position and your own behaviour and find a resolution.’