Hello. My name is Alyssa Hodge. And can I welcome you to this data law webinar on alternative dispute resolution and its use in employment tribunal proceedings? Over the course of the next 30 minutes or so, I'm going to cover a wide variety of things. Firstly, I'm actually going to explain the background to 80 are or alternative dispute resolution and give you a little bit of a history lesson as to how it came about on Get a move on to looking at the role of a cast. The Conciliation Service in what has now become known as early conciliation that is the stage before a case gets to an employment tribunal. I'm then going to spend a bit of time looking at judicial mediation on the impact that the judicial mediation process has had on employment tribunal cases since its inception a few years ago by way of a pilot scheme. And then finally, are looking alternative ways. In other words, a d R. Alternatives to alternative dispute resolution that have been started to be used in practice. So what is a D are? Well, it does what it says on the tin. It is an alternative way off resolving an employment dispute between the parties. In other words, whatever process you adopt, whether it be via without prejudice, discussions or some form of use of mediation, the end result is that the proceedings are dismissed upon withdrawal by the claimant on it avoids the lengthy in certain cases and costly full employment tribunal proceedings. That is always a major factor for most employers. Certainly in modern times, budgets are tight on, certainly in the public sector. For those of you who work in the public sector, you will know that cost saving measures, wherever they can be used, are being brought in to various cases. The cost implication is incredibly important because obviously, if the proceedings are settled at an early stage without the need for going to a lengthy employment tribunal hearing, any employer is going to be in a financially better position nipping a case in the bud at an early stage. If it can be, rather than going through the full tribunal hearing off course, In certain instances, costs can be awarded in the employment tribunal, but for those of you practice employment law on a regular basis, you will know that costs in the employment Tribunal are very much the exception rather than the rule. It's only in very limited circumstances. The costs awards can be made. I remember some years ago and always using the statistics in a prior seminar saying that off the 130,000 cases in the employment tribunals in a particular year only 217 costs were made at that illustrates that an employer or indeed an employee are highly unlikely in the majority of cases to recover their legal fees for any full hearing. The other advantage in a general sense of alternative dispute resolution is, of course, the other remedies that are available. The employment tribunal, in the main in, say, an unfair dismissal case can award compensation to the employees that compensation invariably comprises a basic award on day compensate, every award, a discrimination cases and whistleblowing cases and other avenues. There is, of course, the potential for the employment tribunal to award injury to feelings under the Vento guidelines on in very, very limited number of cases, there's the possibility for aggravated damages as well as exemplary damages. But the beauty of a D are in employment cases is it goes beyond those powers off the Tribune, for example, it may well be the case that an employee desires at a particular reference from their previous employer to be worded in a certain way. That is something that can be explored through the auspices off mediation or alternative dispute resolution. So for those of you who mainly act for claimants, don't automatically assume that all you your negotiating position during any form of aid ER is limited to the remedies that the tribunal could award at the end of the case. The parameters are far wider. I remember many years ago being involved in a mediation on unemployment tribunal case, although slightly different circumstances to that to which 1 may be accustomed. The liability hearing had already taken place on out of 27 allegations of discrimination. The claimant had succeeded on three of them. It was therefore on unenviable task for the employment tribunal that considered that case to actually determine any form of injury to feelings on door financial compensation or otherwise. So what we did was we, in fact, held a mediation. We used the A D R format. A mediator was appointed on after nine long hours of negotiation at 1 30 in the morning, a deal was done on that deal that I was acting for the claimant in that case, that deal that the claimant got provided him with farm or remedies non judicial remedies, if you like, than he would have obtained had we gone to the remedy hearing in the employment tribunal. So the parameters for what a claimant employees can achieve out of mediation are far more widespread than the simple powers of the employment tribunal. The final thing I wish to say by way of introduction to a D. R. Is to bear in mind the concept that both sides lose a de our only works effectively. In my experience, if both the claimant on the respondent employer end to any form of aid er with an open mind but at the same time as entering that process with an open mind, both parties should accept the reality that they are going to lose in some shape or form. The claimant employee is not going to get perhaps as much money as they are claiming in their schedule of Los equally a respondent employer through reaching some form of amicable settlement with the claimant, maybe paying slightly more money, then it wishes to do so at an early stage when entering the a d r. Process. If Ugo, if your clients go into it with that frame of mind that yes, we accept that we're not maybe going to come out of this as best as we thought. That is very often at the best way to approach it. Let me now turn Teoh the Conciliation Service. A cats, of course. A CASS has been in existence for many years on larger industrial relations. Disputes are invariably mediated on negotiated via a cats, where there is, ah, large dispute between a union on an employer, for example, the rail unions negotiating with one of the rail companies. Invariably, the agreement between the union Andi, the employer, will say that any dispute will be sort to be resolved by a cats on the Conciliation Service will get involved to try and ease on, facilitate some form of resolution toe that dispute. However, a cast in more recent years has performed a far more important role not in terms of collective employment law but in terms of individual employment cases on that is by way of its involvement in what has become known as early conciliation. For those of you who practice employment law regularly, you will know that before a claimant can present a claim to an employment tribunal, he or she is required to engage in the early conciliation process. Now, the process itself, the way it actually works, is beyond the scope of this webinar. However, in summary, what a claimant employee is required to do is to contact a CASS, whether by way of the online form or by telephone there, the two easiest means of doing it on providing a cast with certain information the employee has. If you like two choices, it can ask the conciliator at a cast to seek to resolve The dispute with the employer on a period of 28 days is allowed for that to happen, or a claimant conceivably say I have no interest in mediating or seeking resolution At this early stage. I simply want you a cast to issue me with my early conciliation certificate, which bears a number which will then allow the employees to bring at the claim in the employment Tribunal. In my experience, over the last few years. It's very much a 50 50 split. Some employees will follow the former process. They will be keen for a CASS to explore with their employer whether there is any way of resolving the dispute without the need for employment tribunal proceedings. On certainly the cases that I've dealt with at this preliminary stage, I would say of the 50% that go that route, 25% have been successfully mediated and resolved. 25% have not and then go onto further employment tribunal claims off the 50%. However, the other 50% whereby the claimant simply seeks the early conciliation number in order to bring a claim off a claim in the employment tribunal. They tend still to settle at a later stage when the by way of judicial mediation or otherwise. But certainly I would encourage employees clients when considering issuing proceedings, to make use off that early conciliation procedure. But a cast doesn't simply fall out of the equation at that stage. There are still means within the tribunal system through which employees can obtain some form of resolution of the dispute via a mediation process. This has become known as judicial mediation in larger cases, on especially those cases involving a discrimination element where the claimant remains employed by the by the respondent. Very often, once a claim has been issued, there will be a preliminary hearing for case management purposes on. For those of you practice employment law, you will know this within the agenda for preliminary hearing form. I think it's Section 10. At the very end, each party, both claimant and respondent, is asked the question. Is this a case that is suitable for judicial mediation on If so, are you interested in going down? The judicial mediation route now very often is a matter of practicality. Most employers and employees at the preliminary hearing stage will keep their powder dry on a zai have done on many occasions. In that agenda form, I will simply put TBC at the preliminary hearing. But once at the preliminary hearing, if the judges so minded, it may well be that judicial mediation is offered to the parties. Whether it is operated on offer during ger is a matter that varies from region to region around the country. Certainly Watford on in particular, the barest Edmunds Employment Tribunal with larger cases those from the discrimination element. The judges there are very keen to promote the judicial mediation process. If both parties are amenable on both are interested in judicial mediation, then it may well be offered by the judge. The next stage is usually for a telephone hearing to be arranged eso that certain directions can be put in place for that judicial mediation. However, in the event that both parties are amenable to judicial mediation on a senior judge is conducting the preliminary hearing. It is perfectly possible that directions for that mediation will be given at the preliminary hearing on case management itself. I have a case on the girl of the moment where that was indeed the case. Other directions have been parked until after the judicial mediation on the mediation has been set up for May off 2000 and 19. So again it will vary from region to region as to how a judicial mediation is a set up. Assuming that the parties are amenable to judicial mediation, what is the next stage of the process? Well, as I've said, usually directions are given to ensure that the matter progresses to mediation in an orderly way. There will be, invariably a bundle of documents for use at the mediation. However, the mediator or the employment judge who is doing the mediation will have little interest in a Lever arch file of documents containing ALS. The documents in the case, usually the content of a bundle for judicial mediation, is quite small. It will contain the et one, the ET three, any case management orders that have been made by the employment tribunal at a preliminary stage and thereafter, usually a schedule of loss that is put together by the claimant on. In some cases, a useful device is a counter schedule of los prepared by the respondent. That counter schedule, of course, would be prepared without prejudice to any contentions that a respondent employer may have in a particular case, that a claimant was in fact fairly dismissed or was not subjected to discrimination in any shape or full. The other thing that is usually ordered for the purposes of a mediation is what is called a position statement. Invariably a claimant, employees will be ordered to provide a position statement setting out what their objectives are for the meeting of the judicial mediation on what they hope to get out of it. Usually but not always. A respondent is asked to prepare a mediation position statement as well. Needless to say, the usual order is for such a statement to be provided to the employment tribunal after the respondent has had sight off the claimants position statement. That way the employer can see what the claimant is looking for by way of the judicial mediation on can obviously set out its position in relation to each of the items in the claimant's position statement that are claimed once all that's been put together. The procedure at the judicial mediation is for both parties, usually to arrive at the tribunal at 9 30 on it varies from judge to judge, but usually there will be an opening plenary session. At that session, introductions are made. Everybody says hello. Everybody smiles and everybody is very, very nice. In some cases, the judge conducting the judicial mediation may invite the claimant or his or her representative to make some form of opening statement that is usually based on the content off the position statement. Sometimes, although rarely in my experience will the respondent be given the opportunity to respond on there. After the process is conducted through the judge moving between rooms, the claimant employee and his or her representatives will have a room to themselves for the day. The respondent on its representatives will also have a room to themselves for the day on the process which of course again varies from judge to judge usually involves the judge moving between room on room judges on I don't mean this disparagingly. Judges, some of them are exceedingly good mediators, others are not. So in my experience, it has varied from region to region as to how effective the judicial mediator actually is on the mediation itself. And you have to remember this this This is not a discussion about the merits of the case or scoring points against your opponent that doesn't really get you anywhere in a mediation. What the judges seeking to explore is the wriggle room that may exist between the parties on the prospects for resolving the various disputes, whether through financial, a compensation or otherwise. The agreement, which hopefully will be reached at the end of the mediation, will be drawn up on the day. It's my practice, whether I'm acting for a claimant or a respondent to always attend the judicial mediation with some form of draft wording often order in readiness because there's nothing worse than reaching an agreement in a judicial mediation. Andi. Further time there needs to be taken to draw up. The wording often order. If you are involved in judicial mediations, can I commend to you having a draft settlement agreement already on your laptop computer? When you go to the mediation, it makes life so much easier and resolve things far quicker. If once terms are agreed that they can be put into writing very, very easily, there is now WiFi in most employment. Tribunals on the order can be emailed between you and your opponent and indeed to the tribunal service on the judge. If need be off course, that order, depending on how you wish to do it, can be done in various ways. It can be done in the old fashioned form of a settlement agreement, which goes on for page after page after page. However, my experience of judicial mediations is that the party should try, if at all possible, to involve a CASS and do it by way of a cot three agreement. Therefore, the agreement between the parties is far simpler. It's far easier to draw up on. The One thing one has to bear in mind is that if you are going to judicial mediation, ensure that your A cast conciliator is on standby at the end of the telephone. Because once the written agreement once the cop three has been drawn up, it's very easy. Then, to get a cast on the telephone, the A cast conciliator will explain the effect of the agreement. The claimant on the respondents representative will listen the claim of the cats Conciliator will then confirm with the respondent that these terms are agreed. A cast will ratify the deal and it then takes place as a binding contract between the parties. Judicial mediation. Well, on the whole, most cases on most judicial mediations that I have done have resolved themselves at the mediation. This, of course, it goes from the standpoint that both the respondent and the claimant are entering that judicial mediation with an open mind and with a strong desire toe actually settle the case. One thing that I should mention that is vitally important. Four judicial mediation on judges do stress this when the mediation is being set up, it is imperative that some form of decision maker is present on behalf of the respondent. It's no use, simply the legal team turning up who have no authority to settle the case for a particular sum. Equally on I found this on. It's mainly desired, many geared towards respondents. Try and avoid simply having your decision maker at the end of a telephone line. You tend to find that when one is trying to get in touch with that person via telephone there, either in a meeting or there, simply not answering their telephone. That is no use to man or beast. Please ensure respondents that you have a decision maker there on the day who has the authority to take decisions to settle the claim for a particular at some off money. So much for judicial mediation. There are, of course, other forms of alternative dispute resolution available for employment law cases. There is what one might call standard mediation. There is nothing to stop the parties in unemployment case from going to the expense off, paying a qualified mediator to come in and seek to resolve the dispute between the parties. One tends to find, as a matter of practicality that that only happens in higher value cases. That is where both parties take the view that it is prudent to spend more money using a professionally qualified mediator than it is by way of using an employment judge, which of course, is free as part off the tribunal system. Another way of doing it is simply setting up a round table meeting, where the solicitors, sometimes council and the parties sit around a table on again on a without prejudice basis. Seek Teoh, pound out some form of agreement. I'm not to keen personally on round table meetings. Those that I've been involved in usually end up in fisticuffs or some other nastiness between the parties. It's far better for them, I think, during a mediation or some form of resolution to be separated. It saves nastiness from taking place on. Of course, there is arbitration. Some agreements, no, not all. But some agreements, usually between unions and employers, will say that any dispute that arises between the two parties will be resolved by arbitration that is then carried out, usually by way of a CASS. It's usually an arbitration done through a cats that will seek to resolve the dispute between the parties on, of course, beyond that, If judicial mediation is unsuccessful or the claim continues to progress at, never forget that a cast still exists. If you are unhappy by, if you're unhappy to approach the claimant or the claimants representative or the respondent or the respondents representative directly, one could always telephone a cat's on Get your conciliator to seek, at a much later stage of the proceedings to see whether there is any opportunity to resolve the matter between the parties. On very often, deals are brokered using the A cast conciliator who will move on the telephone between one party on the other 80 are has since its inception in I suppose the late 19 nineties been incredibly effective. It is a means by which parties can resolve their disputes. But I stress again there must be a willingness on both sides, so to do, if that willingness does not exist, then 80 are simply is not going to be of any use on. Unfortunately, the only way of resolving the dispute may well be to appear in front of an employment tribunal on argue the case based on the evidence. Andi make submissions. But it's, in my view, an incredibly useful tool, certainly in cases where the employee is still employed by the respondent. Yes, a lot of cases that go to the employment tribunal will have some form off dismissal element to them. But where, and say a discrimination case or a whistle blowing case where the employee remains employed by the respondent, the respondent should be keen to preserve employment relations with that employee. Equally, the employees will be king to keep their job on to resolve his or her disputes with their employer. In those circumstances, I've certainly found, in my experience the judicial mediation and some form of aid. ER is an exceedingly effective means off resolving matters. Finally, what off the future? Well, looking to the future, It's my view that a D R or judicial mediation or whatever means by which the parties continues to resolve the disputes will only increase. Certainly if you look at the figures over the last 10 years, farm or cases in the Employment tribunal are resolving themselves via judicial mediation or via a cast or throughout some form of alternative dispute resolution means it is certainly the way off the future bearing in mind. As I said at the start, the cost implications for moving forward with litigation to full hearing because lawyers and I include myself in this the tender age of 45 as I am now lawyers are expensive. Andi here, there and everywhere. Both the public sector on the private sector are looking to save money on legal fees wherever possible. The best way of saving that money is to nip a case in the Bader is an early stage, whether by means of a TR or whether by means of judicial mediation or by means of a gas on at the end of the day. Certainly when I'm advising employer clients, it's now very much in my mind to try and go to the end goal. What is the worst case scenario for this employer client in terms of what it will have to spend on legal fees, which is, I said earlier, are unlikely to be recoverable as well as the likely compensation on, then work backwards to try and find a sum of money or at least create a settlement part from which some agreement can be reached. Obviously, where when one is acting for a claimant, employees on a matter has been listed for 10 or 15 days for a hearing. One knows instantly that there is always going to be a pot. Four legal fees on If I'm acting for a claimant, I'm always trying to anticipate that the employer will probably want to spend or be spending £25,000 or £30,000 in respect of counsel's fees for running the hearing on. Therefore, I know instantly that there is a pot of money available or potentially available to settle the claim for the benefit of my employees client. Well, there we are. I hope that has been a useful rundown of how you might use alternative dispute resolution in employment law. I wish you success in your future cases and mediations on Look forward to speaking to you again soon
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