Alternative Dispute Resolution is used throughout civil litigation proceedings, as well as Employment Tribunal proceedings. There are a number of advantages for the parties to consider Alternative Dispute Resolution, most notably the timing and cost savings.
With an employment law dispute where a tribunal case is started the parties to the dispute will automatically be contacted by ACAS, who have a statutory duty to contact the parties to try and mediate. In many employment cases, the parties, and sometimes their advisors, whilst being polite in response to contact from ACAS, do not take up the offer of help. This is often a missed opportunity particularly as :-
- Most help from ACAS is free
- As there is a no costs rule in the Employment Tribunal, an early and sensible settlement is often advisable for both sides
- Mediation, once it gets going, has a good success rate – the hard bit is to persuade both parties to accept going to mediation, as they often generally believe mediation is binding (it is only binding or known to the Tribunal if a settlement is reached) or that somehow agreeing to mediation is a sign of weakness.
If a mediation is agreed, the mediator will be independent and should not side with either party. They will merely be interested in undertaking the mediation session and attempting to bring the parties to settlement. It should be noted that there is no obligation to settle at mediation, all correspondence or discussions will be undertaken on a without prejudice basis, and any information disclosed should not be used going forward if the case proceeds. That said, the parties do need to take a view as to any damages that may be caused by advance disclosure of information at mediation. If the parties are unable to reach a settlement, aside for the issue above, all that will be lost is the time and cost involved. The standard procedure would be for all parties present to meet at the table, and each respective side to state their case at the beginning of the mediation. Then each party will meet with a mediator separately and discussions will begin. It is normally an informal format whereby parties can come together again for round the table discussions or make representations either through the mediator or their Legal Representatives.
Judicial mediation is encouraged at the Employment Tribunal. It is a service that parties can apply for through the Tribunal. Again, it is in both sides interest to consider alternative dispute resolution in order to save the time and costs of proceeding to the hearing. It may be that the parties produce a list of issues prior to any Alternative Dispute Resolution. The respective legal representatives will need to gauge the merits of undertaking Alternative Dispute Resolution. If parties become so entrenched in their positions and/or there is no middle ground, then, consideration needs to be given to the merits of pursuing it. Sometimes it is also appropriate to produce witness statements although this is not always the case.
Parties should approach mediation with an open mind. It is likely that if the mediation is to be successful that both sides will have to compromise in one way or another. If they are not prepared to consider this then they need to think carefully whether Alternative Dispute Resolution is for them. At all times proper legal advice should be sought to ensure that there will not be adverse consequences by unreasonably refusing to undertake Alternative Dispute Resolution. It is also important that both parties are on an equal footing and each has legal representation throughout.
It is normally the case that a time limit is placed on mediation, and this will assist the parties in concentrating the minds and working towards a settlement within that timeframe.