Our mediator was excellent he helped us a great deal and helped explain any legal jargon

Transcription

1 Mediation An effective way of dealing with your complaint Our mediator was excellent he helped us a great deal and helped explain any legal jargon I would recommend this service to anyone who has difficulty finding a voice that is listened to

2 1. What is Mediation? Mediation is a confidential process which gives you and the practitioner (also known as the parties ) the opportunity to meet together with an independent third-party so you can both decide how to sort out the service complaint. The third party - the mediator - helps you talk through the problem to see if you can agree a fair and reasonable solution. Please note that by agreeing to mediation, the practitioner is not necessarily admitting any fault. 2. Why use Mediation? Mediation is a speedy and effective way of resolving disputes. Below is a list of some of the benefits of mediation. It s Free There is no charge for the mediation service. It s Quick The SLCC s formal investigation process can take up to a year (and occasionally longer) to conclude. Mediation provides a more speedy way of resolving disputes as it can take place in a matter of weeks. This means an agreement is reached quickly, which gives both parties the chance to move on with their lives and complete any outstanding business. While it is always preferable if you attend the mediation in person, we can organise mediation to take place via Skype or telephone conference. You re in Control With the help of the SLCC appointed mediator, you are given the opportunity to explain why you are unhappy, what your complaint is and to negotiate a settlement that is acceptable to you. You are the decision-maker and have control over the outcome; the settlement is not imposed on you. It s Effective Approximately, 4 out of 5 mediations result in an agreement. People who negotiate their own settlements often feel more empowered and pleased with the outcome than those who use a third-party decision maker. We find that people who have reached their own agreement in mediation are also more likely to keep to what is agreed than those whose resolution has been imposed on them.

3 Some feedback we ve had on our mediation service: The [mediator] made the whole process go smoothly, i.e. made sure any legal talk was explained thoroughly so as we both understood. I was very nervous but he put me at ease The mediator listened to what I had to say and took my points. Made the meeting a lot less stressful The mediator was first class 3. Success Rate of our Mediation Process In general, about 4 out of 5 mediations result in an agreement. This means that you leave with peace of mind that the complaint has been sorted out and you do not have to wait for a formal lengthy investigation. Most importantly, you have control over the words and terms no one will force any agreement on to you. 4. Who are the Mediators? We provide professional, independent, experienced mediators from a variety of backgrounds. Their role is to listen carefully and to assist the discussions. They are not there to take sides or to give advice. They won t make any judgements or decisions. The mediator will be responsible for conducting the mediation meeting in accordance with the Guidelines for Mediators, provided at section 9 of this booklet. 5. What Happens at Mediation? The process is flexible. Sometimes the meeting starts with everyone together in one room. The mediator invites one person to tell the others the circumstances around the complaint from his or her point of view. The other side is asked not to interrupt but to listen carefully to what s being said. Then it s the other person s turn to speak without interruption. After that, the discussion may continue in the one room, or the parties may decide they want to have separate meetings with the mediator. In these

4 circumstances, the mediator goes between rooms having confidential discussions with each party about possible ways to resolve the complaint. Another alternative is that the mediator meets with each person separately first and then invites everyone for a joint meeting to move the discussion along to see if there s scope for an agreement. 6. What will be the outcome? Because the parties decide how they want to resolve the complaint, the outcome will be different for each case. The parties may, for example, agree that the practitioner should apologise, reduce fees and/ or pay compensation. The complainer may accept an explanation given by the practitioner and decide to go no further with the complaint. Or it might be decided that the practitioner will change the way he or she has been doing something so that other clients aren t affected the way you were. Both sides must agree on what they want to happen. You will never be forced to accept anything against your will. If there is agreement, the mediator writes up what the parties have agreed and both the sign the document. The SLCC will check that any agreed action has been done and, if so, the complaint file is closed. It may be that the parties can t agree how to resolve the complaint. This doesn t mean that the mediation has been a waste of time, as it s often a very helpful way of clearing the air and really focussing on the key issues of the complaint. If there is no agreement, the SLCC will move the complaint on to the investigation stage. An investigation of the complaint will then be undertaken by one of the SLCC s Case Investigators who will make a recommendation about whether or not it should be upheld. 7. Next Steps If you have any questions or would like to try mediation, please contact the Mediation Co-ordinator on slccmediation@scottishlegalcomplaints.org.uk or telephone Further information on our mediation process, including a video showing what happens during a mediation, is also available from our website at the following link If you require an interpreter or advocacy worker to assist you at mediation, please let the Mediation Co-ordinator know as soon as possible.

5 8. Frequently Asked Questions How much will mediation cost? Mediation is a free service offered by the SLCC. Where will mediation take place? At a place that is mutually convenient to both you and the practitioner. The SLCC will arrange this. Do I have to be present at mediation? If you prefer, we can organise mediation to take place via Skype or telephone conference. What will be discussed at mediation? The issues that the SLCC has accepted as eligible service issues for investigation will be discussed at mediation. What do I need to do in preparation for mediation? You do not necessarily need to prepare but it may help to read over your complaint to familiarise yourself with the issues that have caused you concern and that the SLCC has accepted as eligible for investigation. You may wish to think about what you would like to happen to resolve your complaint and how you can explain the points you wish to raise to the practitioner. It may be helpful to put yourself in the shoes of the practitioner and to think about how they may respond to the points you raise. You may also want to think of how you could respond to any points that may be raised by the practitioner. Should I bring anything to the mediation? It may help to bring any paperwork you have on the complaint to the mediation so that you can refer to them and refresh your memory if need be. The mediator will have a copy of papers from the SLCC s file on your complaint. Who decides the outcome of mediation?

6 Mediation is only successful if both parties reach agreement. It is up to you to decide whether or not you are prepared to accept any settlement that has been proposed. What happens if I feel uncomfortable during the mediation You should let the mediator know that you don t feel comfortable and why. The mediator may try to help to make you feel more comfortable but they will never make you do anything you don t want to. You can leave at any time. You don t even need to speak directly to, or be in the same room as the practitioner. Will the mediator offer legal advice? No, the mediator is not qualified or allowed to provide legal advice. Does the mediator meet with the parties beforehand? No, they will meet both parties on the day. Can I bring someone with me to the mediation? If you want to bring someone with you to the mediation you should let the SLCC s Mediation Co-ordinator know in advance of the mediation so they can let the practitioner know and check that they are happy with this. Can I bring a solicitor to represent me at the mediation? You can, provided you have let the SLCC s Mediation Co-ordinator know in advance of the mediation and the practitioner has agreed. However, mediation is not about arguing over legal points. Mediation is about working together to see if a resolution can be reached. In addition, a solicitor may charge for accompanying you to the mediation. You would be responsible for paying any such fees. The mediator will ensure that legal terms are not used or, if they have to be, that they are explained. Do I have to be present at mediation? You can send someone on your behalf to represent you at mediation provided the other party agrees. If you want to send someone else you should let the Mediation Co-ordinator know in advance of the mediation. If you prefer, we can organise mediation to take place via Skype or telephone conference.

7 I m worried the practitioner will use legal terms or jargon I don t understand. Can the mediator help? Yes, if there is anything you don t understand, you should ask the mediator and he/she will ensure the practitioner explains what they mean in plain English. If an offer for settlement is made at mediation, how to I know the offer is reasonable? The SLCC has a Policy on Settlements and Disposal of inadequate professional service complaints. This gives guidance on how the SLCC determines, following investigation, what sanction should be imposed and the level of any compensation. A copy of the policy is available on request or can be downloaded from the SLCC s website at If Mediation is successful, what happens next? If mediation is successful the mediator will ensure that you and the practitioner have reached agreement about what will happen next and when. The SLCC will ask the parties to confirm that there has been compliance with the agreement.

8 9. Guidelines for Mediators The following information is based on the Code of Practice for Mediation in Scotland developed by the Scottish Mediation Network. Mediation is a process in which parties seek to resolve their differences with the assistance of a trained mediator acting as an impartial third party. Mediation is voluntary and aims to offer the parties the chance to be fully heard, to hear each other s perspectives and to decide how to resolve their complaint themselves. The Mediators appointed by the SLCC must comply with the following guidelines: Voluntary Participation and Self Determination A mediator shall recognise that mediation is based on the principle of voluntary participation and un-coerced self-determination by the parties. Impartiality, Independence and Neutrality A mediator shall remain impartial, independent and neutral. If a mediator becomes aware of any reason which may diminish her/his impartiality, independence or neutrality, he/she shall disclose this to the parties at the earliest opportunity and withdraw from the mediation unless the parties do not wish her/him to do so. Conflicts of Interest A mediator shall disclose all actual and potential conflicts of interest reasonably known to the mediator whether before or during a mediation and shall withdraw from the mediation unless the Parties do not wish him/her to do so. Competence A mediator shall be responsible for undertaking sufficient training, supervision and continuing professional development to maintain necessary mediation skills. A mediator shall mediate only when she/he believes that he/she has the necessary skills to carry out the mediation. The mediator shall not guarantee settlement or promise specific results. Confidentiality Confidentiality in mediation is important to encourage all parties to speak truthfully and candidly, and to enable a full exploration of issues of the complaint. Unless compelled by law, a mediator shall not disclose any

9 information which may identify the Parties given as part of the mediation process. Understanding of Mediation A mediator shall ensure that the Parties understand the purpose and procedure of the mediation, the role of the Parties and the mediator, and the obligation of confidentiality. Gifts and Favours A mediator must not accept from or exchange any gift or favour with any Party in any mediation. A mediator must use judgement that reflects the high ethical standards which mediation requires. Discrimination A mediator must always treat Parties with respect and without discrimination. Publication Date: 12/02/2015