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Friday
Feb282014

Help for Dementia sufferers

Health Secretary Jeremy Hunt has unveiled new plans to increase the help available to dementia sufferers in the community.  His plans include ‘Dementia Friends’ being trained in such places as Marks & Spencer, Lloyds Bank and Homebase.

It is estimated around 800,000 people have been diagnosed with dementia and this figure has been predicted to reach 1.7 million by the year 2051.

Jeremy Hunt stated, “(This) is about government, clinicians, business, society and investors coming together to raise our game on every front – from speedy diagnosis to compassionate care, and from help on our high streets to the quest for a cure.”

Whilst awareness of Dementia Care is being raised, there are other areas of support that sufferers and their families need.  It is advisable for a person suffering from Dementia to ensure that their legal and financial affairs are organised, should they lose the ability to conduct their own affairs.

Setting up Powers of Attorney will ensure that financial affairs and matters concerning health and welfare decisions can be set out and followed in the event of the sufferer losing capacity.  Not only will this provide peace of mind for sufferers, but leave them safe in the knowledge of who will be looking after their affairs.  Making a Lasting Power of Attorney can also provide peace of mind for families at what is a very stressful time.

Kidwells can offer Lasting Powers of Attorneys, along with the Wills and Probate services and for more information contact Miss Zoe Smith on 01432 278179.

Thursday
Feb132014

MEDIATION – MAKE PEACE NOT WAR

Mediation has been widely used in the UK for more than 20 years and is recognised as a valuable method for Dispute Resolution. Recent case law has provided yet another reason for parties to mediate following a decision in the Court of Appeal ordering a cost sanction against a party who failed to respond to a request to mediate.

 

Claire Yardley, Director of Litigation, provides some answers in respect of mediation. 

 

Q) What kind of dispute is mediation used for?

Mediation is a good way to deal with any kind of dispute in which a compromise can be reached and both sides are prepared to make concessions in order to resolve the problem. Both parties have to attend mediation with the mind to compromise, if not, it is unlikely the mediation will be successful. Mediation can be used in the very beginning of a dispute, or after legal proceedings have been issued, but it is important each party has all the facts prior to the mediation.

 

Q) What is the advantage of mediation over litigation?

Mediation is more flexible, which means that it is more likely to achieve a practical solution that is acceptable to both parties, taking into account the parties’ needs. An agreement reached at mediation can include all sorts of varying terms that suit the respective parties, which would not be ordered by a Court. If the parties are in a business relationship and want to continue that business relationship then an agreement reached at mediation, before legal proceedings are commenced, is more likely to preserve a business relationship. Mediation is also conducted in private so there is less chance of receiving bad publicity.

Mediation is cheaper and quicker than a full trial through litigation, however mediation can still be expensive if the issues demand experts. In addition, if mediation does not achieve a settlement then the Court process would still have to be followed through, meaning that mediation would be an additional cost. However, mediation has a high success rate and if the parties do want to settle then mediation is the best forum in which to do so.

 

Q) How is mediation conducted?

Mediation works outside of the Court process and an independent person, the mediator, assists in finding a solution acceptable to both parties in order to reach a settlement. Together, the mediator and the parties explore different options for settling the dispute. In practical terms, there are three rooms used in mediation, one room for each opposing party and one room for the mediator. Each mediation is individual and can run differently. Some mediations start with a meeting round the table with the mediator and all the parties, where each party has an opportunity to speak and set out their respective cases. This does not happen at all mediations and some parties prefer not to meet at the beginning but to remain in their individual rooms with the mediator going to-and-fro between the parties to discuss the issues and to hopefully come to some sort of resolution. Each case is different and some cases have higher tensions than others and therefore it is not always appropriate for a meeting between the parties at the beginning.

Anything that is said to the mediator in the individual discussions will not be repeated to the other side unless the mediator is given specific instructions to do so. 

All mediations are on a ‘without prejudice’ basis, meaning that all documents and negotiations are confidential and generally cannot be revealed later on in legal proceedings if mediation does not succeed. The mediator remains impartial throughout the mediation and is not there to legally advise the parties. The mediator’s responsibility is to control the procedure and to ensure the sessions are structured in a way that is fair for all the parties.

 

Q) Generally how effective is mediation?

If both sides genuinely wish to resolve the dispute between them it can be very effective. Even where one side is reluctantly coming to the mediation, if it is handled well, there is still a good chance of a settlement. In the claims where the cost of going to Court is as much, if not more, than the value of the dispute, parties should always seriously consider mediation.

If a settlement is not agreed on the day of mediation, it is likely that negotiations will continue after the mediation itself in correspondence between the respective solicitors, so even if the matter is not settled on the day through mediation, it may well settle after the mediation.

The Courts are placing more pressure on litigating parties to mediate and the recent case of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288 really brings this home. It has been established for some time that an unreasonable rejection of a suggestion to submit to alternative dispute resolution may lead to a costs penalty, however this case has now extended the principle to a failure to respond at all to the suggestion to mediate.   Therefore if a party receives a request to mediate from the other side it cannot simply be ignored, a full response must be provided.  If it is a refusal to mediate the full reasons as to why that party believes mediation to be a fruitless task must be set out clearly.  The Court may still hold that the refusal is unreasonable and costs consequences would follow, but if the Court believes the reasons are valid i.e. that there simply is no claim then the risks of costs consequences for failing to respond are greatly reduced.  The obvious downside of this case is that parties will simply pay “lip service” to mediation and not enter into it meaningfully to avoid costs consequences from the Court. 

 

Q) Who pays the fees for mediation?

Generally the parties share the mediation fees i.e. the venue and mediator’s fees. As to the legal costs, it can either be agreed that each party bear their own legal costs or the parties can agree that the costs be costs in the case, meaning that if the matter does not settle at mediation the Court can assess all costs and the losing party would have to bear the cost of mediation. 

 

Thursday
Jan232014

Twitter Debate

Are Social Media Sites doing enough to keep their users safe?

As you have probably seen on the news, there is currently a debate with regards to Twitter and its safety. These problems arise with all Social Media sites and as you will be well aware, it can sometimes end in abuse, threats and the extreme cases can be fatal for those on the receiving end.

The recent debate has been sparked by former football star, Stan Collymore. The former England player has been receiving death threats and racial abuse through Twitter after his comments during last Saturday’s Premier League Match. Mr Collymore has targetted Twitter claiming that the site has not done enough to stop this kind of abuse. The local police force are currently dealing with Mr Collymore’s complaints however, he believes that the fact that these threats and abuse have been allowed on the site is solely Twitter’s fault.

Twitter have defended themselves through statements explaining that they do not tolerate targeted abuse and it is against their rules. They have further stated that they have “report” buttons for users to report anything they are not happy about and their staff work 24 hours a day to investigate these reports.  They are currently hiring more staff in order to make this process more efficient.

But even with their changes, will there ever be enough done to make Social Media sites such as Twitter and Facebook completely safe for their users? It seems that the only way to combat these issues is to have a constant watch on each user’s site, after all, the only way abuse is seen is if it is reported. On the other hand, does this interfere with a person’s freedom if their actions are being constantly observed? Furthermore, as Stan Collymore has said, it is too easy for users who get shut down to open other accounts, sometimes in other names and using other information.

Yorkshire lawyers and politicians have aired their views on the debate stating that they feel the police need to be doing more to devote time to finding and prosecuting individuals who send abusive and threatening messages but could this be a waste of time and expense for the police force if the organisations could be doing more? Stan Collymore feels the police do not have the support of Twitter in investigating his reports, largely due to their confidentiality rules.

So, are these Social Media sites worth the drama? They have resulted in numerous debates, damge to lives and even loss of life. It is too easy for young, naive, individuals to create accounts and befriend those who may pose a threat to them and it is too easy for those who have been shut down to open new accounts.

It seems that these Social Media sites have not given enough thought as to how to overcome such issues before going live with their sites.

... and the debate goes on. 

Amy Jones
ILEX Legal Secretary/Assistant 

Tuesday
Jan142014

Financial Penalties for Employers 

In November 2011 the Government announced its intention to proceed with a series of measures to:

  • encourage the early resolution of disputes in the workplace;
  • deliver a more efficient and streamlined Employment Tribunal system for all users, and
  • give employers more confidence to hire new staff – supporting growth.

2013 saw a number of changes to the Employment Tribunal system as changes set out in the Employment law 2013: progress on reform   were introduced through the Enterprise and Regulatory Reform Act.

in July 2013 Compromise Agreements became Settlement Agreements and the additional protection to parties for discussions around Settlement Agreements were introduced. At the same time Employment Tribunal fees were introduced and there were changes to the ‘cap’ for unfair dismissal awards.

The first raft of changes were perhaps weighted in favour of employers as they made it more costly for employees to issue a claim thus increasing the pressure to settle or not issue at all.

The second stage of the reforms are due to be introduced on 6th April this year. These will include ‘early conciliation’ (see earlier article Early Conciliation - What is this? ) but also the ability of Employment Tribunals to impose financial penalties on employers who lose in the employment tribunal.

Employers who lose at tribunal may be penalised for breaching employment law and may be ordered to pay a financial penalty of 50% of any financial award, with a minimum threshold of £100 and a maximum cap of £5,000.  There will be 50% reduction of the penalty if it is paid within 21 days.

The Tribunal will have a discretion in when to impose the penalty and will do so where there are ‘aggravating factors’. The factors are not set out but may include breaches that are:

  • deliberate
  • malicious
  • repeated
  • prolonged

Factors such as being a small business, a new business or one with limited human resources can weigh against this discretion being exercised.

Unlike the uplift of up to 25% which can be made where an employer does not follow the ACAS Code of Practice which is paid to the successful employee, the financial penalty amount is set at 50% and is paid to the Consolidated Fund (the government's general bank account in the Bank of England).

The first round of changes could be seen as discouraging employees from issuing claims and addressing the commonly held belief among some parties that employees will ‘ have a go as they have nothing to lose’ before fees were introduced.  The planned second round of changes could then be seen as encouraging employers to settle as the costs of going all the way, perhaps to discourage other employees from issuing claims, can be considerably increased should they lose particularly if they have also breached the ACAS code and have to repay the fees that the employee has paid to issue the claim and for the hearing.

These are the sticks and carrots that are being used to drive claims away from Tribunal and towards settlement. The question for the next year is will this be successful and if so, will it be at the expense of justice for Claimants and Respondents?

Sarah Everton
Director  Employment  Department

Friday
Jan102014

Early Conciliation – What is this?

ACAS pre-claim conciliation has been available to employers and employees for many years and was expanded in 2009 to encourage settlement. It has been a popular arrangement but there was no duty on either the employer or employee to try to conciliate through ACAS before issuing a claim.

From April this year Early Conciliation will be introduced and all ‘prospective’ claimants must send certain information to ACAS before they can issue a claim. ACAS has a duty to conciliate and try to promote a settlement and only if this fails will they be able to issue a claim. ACAS will continue to be able to conciliate if a claim is issued if the parties request it or the conciliator thinks that a settlement may be achieved.

As the pre-claim process is going to be mandatory certain steps must be followed and demonstrated:-

 

  • Step 1: The prospective claimant must send "prescribed information" in the "prescribed manner" to ACAS.
  • Step 2: After an early conciliation support officer has made initial contact with the prospective claimant and confirmed that they wish to proceed, the claimant's information is sent to a conciliation officer.
  • Step 3: The conciliation officer must try to promote a settlement within a "prescribed period".
  • Step 4: If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer must issue a certificate to that. The prospective claimant will be unable to pursue most tribunal claims without this certificate.

 

ACAS have provided some information on this process on the website and drafts of the Early Conciliation Request Form and Early Conciliation Certificate can be found as annexed to Early Conciliation: Government Response to consultation on proposals for implementation .

This additional step will make it even more essential for any potential claims to be considered early. We will keep you updated as the introduction date approaches and will be happy to answer your questions.

Sarah Everton

Director Employment Department