Implementing a mediation scheme; Emma Langford, Head of Legal at Thomas Cook Group Airlines

Emma Langford

Dealing with customer claims in court can be both expensive and time-consuming. Sophie Gould talked to Emma Langford, Head of Legal at Thomas Cook Group Airlines, about the process of implementing a mediation scheme and the potential benefits it can bring to a business and its customers.

Tell us a bit about your background and the business …

I’ve been with the Thomas Cook Group for nearly 12 years, having joined as a junior corporate/commercial lawyer from private practice. Whilst in private practice I was seconded to a client as their sole in-house lawyer - I was a 2PQE solicitor covering for someone with eight years’ experience. It was a huge challenge but I loved it and it made me realise that in-house was for me.

I’m currently Head of Legal for all the airlines in the Thomas Cook Group. I cover the UK, German, Belgian and Scandinavian airlines and my legal team is based across these four jurisdictions. Previously, I was Head of Legal for the UK airline. Moving to the Group Airlines role was a big change in terms of transitioning from an English law, UK focused team to a multi-cultural, multi-language team. The challenge is to get everyone to think of themselves as one team and to act that way.

There are around 20 people in my team and we focus on three main areas: contracts, employment and litigation. As a group overall, there are three distinct functions: group, tour operator and airlines. Whilst all the contracts my team work on are aviation specific, there are other compliance related topics, such as data protection and competition, that are the same across the group. We have to make sure we’re aligned and have consistent policies and procedures for these areas.

I’ve experienced both sides of being in-house - from the sole lawyer having to deal with everything and be a jack of all trades, through to what I do now which is heading up a large legal department.

Can you tell us about the mediation project you’ve been working on?

As a business, we’re conscious of the rise in litigated claims from customers. Most of these come from claims relating to compensation when there’s a flight delay. Mediation, as opposed to a court hearing, is preferable as it’s a more customer-friendly approach. We have to think about the wider business aims of being customer friendly and resolving complaints through mediation ties in with that strategy. It’s not a huge cost saving but the most important thing for us is the difference in approach.

We started off our project by speaking to people, such as the British Air Transport Association and Civil Aviation Authority, about what an industry scheme might look like. The industry had been looking at whether ADR could be implemented for the airline industry as a whole but unfortunately that didn’t happen because various airlines decided to proceed separately.

We then spoke to a number of different ADR providers ourselves, for example Ombudsmen Services and CEDR. We presented them with very specific requirements as to what we wanted the scheme to look like. It’s important to have a clear idea of your requirements and to make sure the providers are prepared to work with you to design a scheme that works for you. You can’t assume that there is an off-the-shelf product to suit your needs.

We wanted there to be different stages of mediation so that not every claim required a full-blown mediation. The idea behind this was to weed out very obviously incorrect claims so that we didn’t have to pay the full mediation fee. We wanted a shorter, cheaper, pre-mediation option that could, for example, be conducted over the telephone to resolve very simple claims at an early stage.

We also wanted the providers to be flexible in terms of whether the other party, our customers, would be required to pay a fee. You need to balance preventing people from bringing completely frivolous claims with being realistic. If a customer has to pay a mediation fee, how does that compare to what they would have to pay if they went to court? If you want to entice them into mediation then it needs to be more attractive than submitting a court claim.

How did you decide what you wanted from the scheme?

We spoke to others who already had ADR schemes. Our tour operator colleagues have a scheme in their industry so I discussed it with them to find out their learnings. We also spoke to our German airline industry colleagues because they have a scheme that’s been running for some time. We discussed how it worked and what they liked and didn’t like about it and from there we were able to start forming our own views about what was important to us.

When speaking to potential mediation providers, it’s helpful to ask them about the schemes they’re already working on in different industries. Finding out how those schemes work and what options they’ve included gives you an idea of the things to consider in your own requirements.

How important are the qualifications of the mediators?

We asked for the professional background of the mediators who would be dealing with our claims. It was important for us to have someone with industry knowledge because a lot of the claims are quite technical. However, we also balanced this against the mediators needing to be seen as independent and for customers to feel confident using mediation, they need to have faith that the scheme is impartial and that they’ll get a fair hearing.

Qualifications matter but actual experience of dealing with mediation is vital too. When we spoke to providers, I was surprised at the differences in the backgrounds. You can’t take it as a given that every provider will have the best qualified and best experienced people.

How are you planning to implement the project?

If a customer complains and is seeking compensation, we will ask them whether they would like their claim to be referred to mediation. If yes, it will then be outsourced to the mediator, with my internal legal team acting on behalf of the company in that mediation. We will need to do some training for those in the team who aren’t litigators. They need to be aware of what the mediation process looks like, what to expect and how it’s different from the legal process.

We aren’t planning to proactively promote mediation through company PR but we will explain to customers on a case-by-case basis that mediation is an option.

What are the key outcomes you hope to achieve?

Cost isn’t the key driver but there will hopefully be some savings. The main outcome we want is a reduction in the number of court claims we’re dealing with. It can be extremely time-consuming to go to court. If we can reduce time spent preparing for and being in court, it will have the benefit of freeing up our legal team so that they can concentrate on other tasks.

Maintaining a good relationship with our customers is really important and mediation supports this outcome. During the process, our customers will see that it’s impartial and hopefully they’ll feel they’ve got a fair outcome. If they don’t and the finding is in favour of the airline, then the customer is still free to submit a court claim if they want to.

How do you plan to review the scheme internally? What metrics will you use to measure its impact?

Other airlines have run trials and the main reason they weren’t successful was low uptake. We’ll therefore be monitoring uptake very closely. Use of the scheme should increase over time as awareness about ADR and mediation rises, but realistically we are expecting uptake to be slow at first.

To measure outcomes, we’ll be looking at the different cases that are referred to mediation and how we classify their complexity. Through monitoring and from the information we get back, we’ll see what lessons can be learnt. We’ve talked to the mediation providers about the type of information they can provide us with and how regularly. It is incredibly important that the data they provide is tailored to our needs.

Going forward, there is likely to be a lot more publicity about mediation from the airline industry as a whole. Other airlines are looking to do the same as we’re doing and that should be seen as a very positive message.

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