Contributors
This article looks at the four approaches employment tribunals may use to encourage parties to resolve their dispute by agreement.
The President of the Employment Tribunals (England and Wales) issued new Presidential Guidance on Alternative Dispute Resolution (ADR) in July 2023. The Guidance outlines four types of ADR that are available to help parties resolve their cases amicably: ACAS conciliation, judicial mediation, judicial assessment, and dispute resolution appointments.
The Guidance emphasises the financial and emotional costs associated with employment tribunal litigation and the inherent risks involved. It highlights that reaching a resolution through agreement enables parties to minimise these costs and risks. The document also underscores the importance of employment tribunals in encouraging parties to pursue a resolution.
This article should be read in conjunction with our employment tribunal process timeline, which can be accessed here.
ACAS conciliation
Unless an exemption applies, it is a legal requirement for an individual to submit an early conciliation notification to ACAS if they would like to make an employment tribunal claim.
An independent ACAS conciliator is appointed to achieve a settlement by explaining the conciliation process, encouraging the use of available internal procedures and discussing resolution proposals either party has and the options available. If a settlement is agreed, it is set out in a COT3 conciliation agreement, which is legally binding.
Advantages
- Conciliation can significantly reduce the cost and time spent on litigation, especially if conciliation is used as a preventative step and settlement can be reached
- The settlement may involve terms that a tribunal cannot offer, such as a reference or an apology
- The process lasts for up to six weeks
- There is no charge to use ACAS early conciliation.
Disadvantages
- Conciliation is voluntary
- Conciliators cannot advise either party to accept proposals for resolution or take a view on the merits of a claim.
Judicial mediation
Judicial mediation is a facilitative process. The employment judge acts as an impartial mediator who will not make decisions for the parties, give advice or hear any evidence. Instead, the judge helps each party understand the claim on the papers and encourages the parties to reach their own agreement.
Advantages
- It is aimed to be held before the parties have incurred significant costs so this process can be more cost-effective
- This is a consensual process. Unlike ACAS conciliation, the parties have to agree to enter this process. The parties are more likely to achieve settlement if they have agreed to enter into judicial mediation
- Judicial mediation often takes place via the telephone or video and is therefore more accessible to potential claimants.
Disadvantages
- Employment cases often depend on witness evidence and this process cannot consider such evidence, as it is solely based on the papers
- Offers of judicial mediation are subject to resource constraints, as the employment tribunal must decide that mediation is a good use of judicial resources.
Judicial assessment
Judicial assessment is an evaluative process, in which the employment judge considers the parties' prospects of success with the aim of reaching a settlement between them. The judge may explain whether any party is being unrealistic, may express their opinion as to the strength or weakness of the claim and will encourage the parties to listen to the judge's views. The judge's opinion is not binding, however the aim of judicial assessment is to help the parties to agree a resolution.
Advantages
- The settlement may involve terms that a tribunal cannot offer, such as a reference or an apology
- Judicial assessment is more cost-effective than progressing through a full employment tribunal claim
- It is voluntary
- If the parties agree to judicial assessment and it is unsuccessful, the claim is not barred from continuing in the employment tribunal.
Disadvantages
- Judicial assessment will not be offered unless both parties request it.
Dispute resolution appointment
A dispute resolution appointment (DRA) is an impartial and confidential process, in which an employment judge evaluates the strengths, weaknesses and risks of the claim on the basis of the documents and information provided. DRAs generally focus on the most complex discrimination and whistleblowing cases listed for six days or more.
Advantages
- The appointment is confidential. Statements made in the appointment can be used in subsequent "without prejudice" discussions between the parties, however such discussions cannot be referred to in correspondence with the tribunal or at a final hearing
- The judge is able to make a decision on the evidence that has been provided by the parties, as opposed to on the papers in the case of judicial assessment.
Disadvantages
- A DRA is not necessarily consensual, as the employment tribunal may arrange it without the parties expressing any desire to have one
- The availability of a DRA will depend on available resources in the region.
Further information
If you have any queries on this article or would like more information about settlement discussions in the employment tribunal, please get in touch with your usual WBD contact or the author of this article.
