New Guidance on Alternative Dispute Resolution

The President of the Employment Tribunals in the UK, Barry Clarke, has issued Presidential Guidance on 7 July 2023 about Alternative Dispute Resolution.

The Guidance acknowledges that the whole Employment Tribunal process has a cost, whether that is for society in terms of running the judicial side of things or for the participants in terms of time, emotional energy, legal costs, damage to reputation and disruption. It acknowledges that whatever the dispute, the Employment Tribunal process involves risk for those involved, both financial, emotional and reputational. In cases where an outcome is fairly clear, the Tribunal’s approach to remedy, when it comes to compensation, can’t be predicted with certainty until the Tribunal has evaluated all of the evidence. Inevitably, alongside the question of whether a claim will succeed, there is always a discussion about what it is worth and in some cases, particularly arrears of pay cases, the costs of arguing about a case can totally outweigh the sums involved.

The Guidance goes onto acknowledge that every time a case is resolved by agreement, in some shape or form, that that is minimising those different types of cost and risk involved. There is an advantage to everybody of being able to move forward if a resolution is reached. From his perspective, resolution of cases also frees resources to be devoted to other cases. You may not know this but when they are listing, the Tribunals routinely put more cases in the diary than there are actually Judges available to hear them, working on an assumption that a high proportion will be resolved.

In terms of settlement options, generally we are talking about conciliation through ACAS but also things like Settlement Agreements.

The Guidance emphasises that of course the Tribunal system will decide a case where the parties cannot reach agreement, but the system is going to encourage them to resolve their case by agreement, wherever possible, and this is the focus of the Guidance.

There are four different approaches. This Blog will focus on the three that people are less familiar with: Judicial Mediation, Judicial Assessment and a Dispute Resolution Appointment.

Judicial Mediation is a consensual (meaning the parties have agreed to participate), confidential (without prejudice – so that any concessions made in the meeting will not be used in Tribunal if the process fails) and facilitative (means the Judge is there to facilitate a settlement, not to give any views on the merits of the case in front of them or prospects of success). It is used in cases that are listed for 3 days or more, so complex things like discrimination and whistleblowing cases. This process can be useful early doors before costs have been incurred and usually takes place over a day. If agreement is reached, it falls into the ACAS COT3 process to wrap it up. Any Judge that has been involved would not then be involved in a Hearing if the case does reach a hearing.  Success rates are said to be 65-70%.

Judicial Assessment is consensual, confidential and evaluative (evaluative is where the Judge evaluates the respective prospects of success and possible outcomes in terms of remedy whilst remaining impartial). The Judge is able to give an opinion. If the parties don’t accept what is being said, it can certainly assist them to understand the issues at stake and to clarify and narrow the things that are requiring adjudication moving forward so that in itself can be useful to reduce the number of days hearing that is necessary. Again, the Judge that was involved would not be involved in a Final Merits Hearing.

A Dispute Resolution Appointment. This is the new bit – it is non-consensual, confidential and evaluative. It is aimed at cases listed for 6 days or more (more complex claims). A Judge can require the appointment.

Such an appointment can be proactively used where the type of case means that there is going to be a lot of time and effort put into case management, correspondence with the Tribunal or where long hearings are going to contribute to waiting times. These are going to be used where long hearings would be out of proportion with, for example, the fact that the parties are still in an employment relationship or where the likely award would be in respect of injury to feelings only. Such an appointment might also be used if judicial mediation has failed.

Whilst these sorts of cases may settle nearer a hearing time, that in itself, clogs up the system. Effectively, the Tribunal is intervening and requiring the parties to come together to discuss the issues in the case. They can’t of course mandate an outcome from the appointment but they can force minds.

This is usually a 2 or 3 hour hearing which will give an evaluation of prospects of success and possible outcomes whilst remaining impartial. In order to be able to do this effectively, this will take place after the witness statements, so unlike Judicial Mediation, for example, the Judge will have a copy of the relevant paperwork. Again, this is done with a view to the parties really understanding what the case is about and what is at stake, narrowing the issues requiring adjudication and resulting in a shorter more focused final hearing.

Like any change or processes that they are not familiar with, people naturally shy away from trying these things. As a trained mediator, I am of course a big advocate of Alternative Dispute Resolution, particularly because outcomes can be agreed which the Tribunal wouldn’t otherwise be able to order, such as agreed references or apologies.

I took part in a Judicial Mediation last year where I was acting for the Claimant in a high value claim and there were real advantages: the Claimant was able to participate in the comfort of her own home and was not put to the stress and anxiety of travelling to and appearing in a Court environment, the matter was resolved 6 months earlier than it otherwise would have been, again saving a lot of stress and anxiety and she received a sum that she would have been likely to receive had the matter gone to Tribunal. The employer saved themselves 6 months of hassle and all the work in preparing the case.

The next time you are dealing with a difficult dispute, maybe you should give one of these a whirl.

Refreshing Law Ltd
10 July 2023