Earlier this month, the President of the Employment Tribunals (England and Wales), Barry Clarke, issued new guidance on alternative dispute resolution (ADR) – in essence, ADR is a catch all name for the methods to resolve a dispute outside of the Employment Tribunal (the ‘Tribunal’) which is the traditional litigation route for employment-related matters. The plan is to utilise different kinds of potential ADR mechanisms to remove cases from the listings early by way of settlement.
The guidance recognises that there are significant downsides to pursuing a claim in the Tribunal. Unlike other civil courts, parties generally pay for their own costs, with costs orders being the exception, not the norm and not being awarded to the victor in any event generally. There is additionally, the factor of public costs, which will be spent on a judge, a hearing room, and a clerk amongst other things. Not to mention, the non-monetary setback of the sheer emotional burden that litigation can bring, particularly if it is protracted (and with the current backlog, cases are taking up to 2 years to get to a final hearing) and the uncertainty of whether a claim will succeed or whether a party can successfully defend a claim.
So, what are the alternatives to ET litigation which are proffered by the guidance?
1. ACAS
ACAS is a service independent of the judiciary that is usually compulsory prior to commencing proceedings at the Tribunal. Such services can be requested at any time during proceedings.
2. Judicial Mediation
Judicial mediation is a ‘consensual, confidential and facilitative’ process usually reserved for cases listed for three days or more and claims which involve allegations of discrimination and whistleblowing detriment or more complex unfair dismissals claims. The success rate of judicial mediation is between 65-70%.
The judge’s role in a mediation is to assist the parties to reach their own solution and the Judge will manage the process in a way that is ‘fair and constructive’, ‘making sure that they understand what is going on and helping them to focus on areas of agreement and common interest’. The judge conducting the mediation will not give an indication of prospects of success.
If an agreement is reached, the judge or parties will involve ACAS but if not, the case will proceed to a final hearing. One particular advantage of mediation that is not available at the Tribunal is that parties can discuss and agree on practical or non-financial solutions (such as an apology, for example).
3. Judicial Assessment
Judicial assessment is a ‘consensual, confidential and evaluative’ process and can be used for any type of claim, regardless of duration or complexity.
An employment judge will impartially assess the strengths, weaknesses and risks of the claims, allegations, and contentions of the respective parties. Any discussions are ‘without prejudice’ i.e., they cannot be referred to either in Tribunal correspondence or hearings. The assessment by the judge is evaluative and is practical; they will encourage the parties to be open, pragmatic and to listen whilst considering how they can assist the parties to reach an agreement. Any assessment given by the judge is provisional and this will be made clear to the parties.
An agreement reached following judicial assessment can be recorded by an ACAS conciliated settlement (a ‘COT3’), a settlement agreement between the parties or a consent judgment.
4. Dispute Resolution Appointment (‘DRA’)
A DRA is a ‘non-consensual, confidential and evaluative’ process usually for cases listed for six days or more and generally for ‘the most complex claims containing allegations of discrimination and whistleblowing detriment’.
A DRA is usually listed for 4-6 weeks after the date on which the parties have been directed to exchange witness statements.
An employment judge has the same role as in a judicial assessment (i.e., giving a view on each party’s prospects based on the information they have and their experience) and any discussions are similarly ‘without prejudice’. The purpose of the DRA is to encourage parties to resolve their disputes by agreement and the judge will consider how to assist in achieving this aim. However, there is no mandatory requirement to settle, and it remains a singular appointment of usually 2-3 hours.
A settlement following a DRA can be recorded in the same way as an agreement following a judicial assessment.
All of the above forms of ADR still seek to achieve what is known as the ‘overriding objective’ of the rules that govern the Tribunal namely, to enable the Tribunal to deal with cases ‘fairly and justly’ so far as practicable. A judge who is involved in parties ADR processes is then precluded from sitting as Judge in the final hearing, so there can be no bias.
The post-pandemic backlog is still going strong at the Tribunals and employment claims are on the rise; as such, the uptake on ADR may be greater than is currently. Hopefully, it will work to assist the wheels of justice to turn that little bit faster. Let us wait and see!