By Emma Webster and Camilla Palmer
I heard about YESS through a friend. It sounded like an intriguing project at a time when I was fed up with private practice, had two small children and needed flexibility but did not want to compromise on the quality of the organisation where I worked.
I did not (if I’m honest) foresee it becoming my (almost) full time job and, more importantly, becoming a job that I love, that I look forward to and that has rebuilt my confidence in law as a profession.
I always believed in the strapline ‘Life’s too short to litigate’. Litigation was never the part of the job I enjoyed. But being able to tell clients and opponents of our mission to negotiate not litigate from the outset has provided freedom I had not anticipated. I can put clients’ needs ahead of any financial pressures or targets. I can free clients (and me) from the stress of litigation deadlines and I can provide help to many people and organisations who wouldn’t normally be able to afford private legal advice.
Working with Camilla has been a gift. She is, of course, brilliant at what she does – it is no surprise that she is an honorary QC. So I get to learn huge amounts from her about almost everything. We agree on most things, particularly YESS’ values and direction of travel. But I think what has been key to the success of our relationship is our ability to properly communicate with each other. We challenge each other all the time (nicely) – with very different strengths and weaknesses. We have walking meetings so that we can say what we need to say without the intensity of looking each other in the eye. It was during one of these walking meetings that she proposed we become joint CEOs and I very nearly fell over. Camilla has always made me feel an equal but I wasn’t expecting it. It took me some time to have the courage to accept her proposal – walking in Camilla’s (very fast) footsteps is no mean feat.
In 2017 we are planning, together, to take YESS to new exciting places. We have funding from The Legal Education Foundation and Trust for London to scope a new online dispute resolution site and our work as employment lawyers continues to grow with the hope that we will employ a new solicitor sometime this year. I am so grateful to be working at YESS and I am very excited to now be jointly responsible for making YESS even better than it currently is.
How can I match Emma’s blog – except to say (somewhat cautiously for fear of being immodest) that I agree with everything she says. When Emma started at YESS, we were called the ‘Dream Team’ – and Yes, it’s still true. We do not agree about everything – but about 99%. YESS would not be where it is now without Emma.
The first year at YESS was nerve-wracking. Its set up was described (frequently) as ‘brave’. I knew what that meant (foolhardy, risky and probably doomed). Even one of our trustees said that if they had been a betting person the odds were against us.
Between us with help from other lawyers (Paul Statham, Elaine Heslop, Tom Barker) and the rest of the team (Andrea Smith and Lucy Chaudhri) we have made the model a successful one. We have had fantastic support from our trustees for which we are really grateful. And a ‘thank you’ to Sadiq Khan for having faith in us, launching YESS and encouraging everyone to support us.
We have learnt a lot from our ‘experiment’. Now it seems obvious but many confirm to us that it is not. One employer’s response to our model was ‘Hallelujah. This is what we should be doing.’ Our plan is to make it obvious to all.
What we want from 2017 is an increase in employers, employees and lawyers following our model, by which we mean
- Focussing on solutions going forward, instead of an exchange of blame and recrimination;
- Seeking resolution as early as possible before the dispute becomes entrenched; it should not be seen as a sign of weakness to be the first to suggest a resolution;
- Negotiating with constructive dialogue not legal threats or aggressive behaviour, though the parties need to understand their legal rights and obligations;
- Avoiding the language of threats and legal claims which lay the ground for battle, each party being determined to outdo their opponent;
- Avoiding litigation-like procedures, such as grievances, which often do more harm than good and rarely resolve anything;
- Being willing to pick up the phone for a chat with your opponent focussing on finding a resolution, making it clear at the outset that this is the intention;
- Understanding that for most employees and employers, the last thing they want is to spend time, money and energy on an uncertain, unpleasant process such as litigation. As one barrister said, ‘litigation is for fools with deep pockets’.
The YESS way of negotiating may not suit all situations. It will not win over rogue employers determined to exploit workers. It is unlikely to persuade employers to ensure equality of pay in the multi-party claims against large employers. It is not going to resolve uncertain points of law which need the court’s interpretation in test cases. But, in most cases the YESS model does work, saving costs, time, stress and ill-will.
We are not saying the law is irrelevant. Strong legal rights for workers are key to good employment practices. Many ask how we can have any negotiating power when we do not litigate. The answer is that the (often unstated) ‘threat’ of litigation is there in the background if we fail to reach resolution. We negotiate in the ‘shadow of the law’.
We are confident that we will make a success of job-sharing the role of CEO, both working part-time, though with the inevitable flexibility to deal with urgent matters on our days off. As Emma says, communication is key, both with each other and our clients.
So, we plan to grow in 2017, to get the message out that our way of negotiating works (and is much less stressful) and to help employers and employees to find a better way of avoiding unnecessary conflict and sort out disputes quickly. Optimistic, Yes, but that’s always been our way.
YESS (Your Employment Settlement Service) is an ADR charity which provides legal advice in the workplace and negotiates without litigating www.yesslaw.org.uk