New ‘dispute resolution appointment’ to be introduced in employment cases

The employment tribunal system is buckling under pressure with a long backlog of cases and delays of many months for cases to be heard. The resourceful President of the Employment Tribunals of England and Wales, Barry Clarke, has a plan to tackle it which is through alternative dispute resolution. He has just published new Presidential Guidance setting out the main four options with protocols for each.  There is a new one in there and we’ll take a look.

The four ADR options are:

1 Acas conciliation – accessed independently of the judiciary and can be requested at various stages of the tribunal process.
2 Judicial Mediation – where a judge facilitates a resolution between the parties typically in case of 3 days or more and with a success rate of 65-70%.

3 Judicial Assessment – where a judge will ‘evaluate’ respective parties’ prospects of success and remedy, while remaining impartial. It can be used in any type of claim, regardless of duration or complexity.

4 Dispute Resolution Appointment – this is the new one and has recently been trialled in the West Midlands and Bristol and we understand there are plans to roll out across the rest of country soon. It’s non-consensual meaning an Employment Judge without the consent of the parties can order it to happen. The focus is on cases of 6 days or more, which will generally be the most complex claims, and takes place late in the proceedings, after exchange of witness statements.  The judge will give their view on each party’s prospects based on the information they have, and their experience. 

So, let’s take a look at that new option, Dispute Resolution Appointment, because our team does have some experience of it. Earlier I spoke to one of our Birmingham-based lawyers, Rebecca Sulley, about it:

Rebecca Sulley: “So, dispute resolution appointments are something that have been trialled in the Birmingham and Bristol tribunals for a while now and they're in cases that are listed for six days and over. We haven't seen a huge number but we have seen an increasing number where it is compulsory to attend. Now, how this process differs a little from judicial mediation and judicial assessment is that this is something that is done right at the end of the process before the full hearing. So, we will have prepared the bundle, we would have exchanged witness statements, and these are then sent to the tribunal judge to review in advance of the meeting that you have, the idea being that they can give a bit of an evaluation as to the strengths and weaknesses in the case in a really, kind of, last-minute attempt to try and settle the case and avoid time in hearing.”

Joe Glavina: “I gather a number of the lawyers in our team have been involved in Dispute Resolution Appointments, Becci. What’s been their experience of them?”

Rebecca Sulley: “I think it's fair to say it's mixed, and I think that's probably the case dependent upon the particular case and the particular judge. We have had some success with it. So, in particular, in a case where the claimant had a particularly high expectation in terms of settlement such that settlement hadn't been achievable prior, it was quite helpful because the judge went through their case and explained what they would have to show, and gave a view that actually they were facing a bit of an upward battle and although it didn't settle during the course of that meeting, because they are only listed for a couple of hours, it did settle shortly afterwards. So, that was a real benefit that we perhaps wouldn't have achieved had a judge not come in to give their view on the merits. However, on the downside, because it is compulsory, if we have a case where we've given very good prospects, and we think the client will win, it is an additional cost in the process for our client because you are required to prepare a counter schedule of loss, you're required to obviously incur all the costs in witness statements before the meeting, and then you'll have the three to four hour ADR meeting to attend in addition. So, it really depends upon the case as to whether it's going to be of benefit or not.”

Joe Glavina: “On costs Becci, there isn't necessarily going to be a cost saving because, as you say, the process involves lawyers having to do some work but, I suppose, if ultimately you avoid a hearing at the end of the day, and all the costs associated with that, then there is a saving?” 

Rebecca Sulley: “Yes, absolutely, and if you have it listed far enough in advance that you haven't incurred counsel’s brief fee, for example, and you do reach a settlement then, absolutely, there is a cost saving and in addition if, for example, the claimant didn't attend, because it's compulsory then their non-attendance can go towards costs in a final hearing as well. So, it is in both sides interest to participate and to reach an agreement and, of course, if a judge is saying that a claimant doesn't have a very good case then that again could lead into costs if they decide not to settle at the ADR.”

That new Presidential Guidance was published on 7 July and is well worth reading if you use the employment tribunals. The Appendix includes three protocols explaining how judicial mediation, judicial assessment, and dispute resolution appointments work in practice, very clear and well written. We’ve put a link to the Guidance in the transcript of this programme for you.

LINKS
- Link to new Presidential Guidance published on the use of alternative dispute resolution in employment tribunals in England and Wales