What are Alternative Dispute Resolutions (ADR)?

Employment Tribunals serve as the primary forum for resolving disputes between employees and employers and are the judicial body dedicated with overseeing workplace justice. They promote the functioning of the rule of law at work. However, it comes with a number of expenses for both parties, and the procedure can be unpleasant, particularly in complicated situations or when family ties are involved. Alternative Dispute Resolution (ADR) could help many cases be resolved quickly and free up resources for other types of disputes.

Although some matters may ultimately need to be litigated all the way to a trial, many cases can and should be settled promptly so that the parties and their witnesses can resume their normal lives. In addition, when a case is resolved, resources can be allocated to other cases, whether they are handled by the Employment Tribunals or by the wider legal system.

The four forms of ADR that are available include:

1. ACAS Conciliation
2. Judicial Mediation
3. Judicial Assessment
4. Dispute Resolution Appointment

ACAS Conciliation

For less complicated situations, especially when one or both parties lack legal representation, ACAS Conciliation, which functions independently of the judiciary, is often thought to be the most effective.

Regarding claim outcomes and remedies, ACAS conciliation is promoted during case management hearings and may be reemphasized at the conclusion of the hearing.

Judicial Mediation

·Judicial mediation in tribunals reports a success rate of 65-70%, saving 22,000 sitting days. However, it is frequently unavailable for cases with a listing of less than three days, which prevents many tribunal claims from being eligible for Judicial mediation.

·Judicial mediation is thought to be less appropriate when there are numerous claimants or respondents, which is frequently the case with discrimination claims alongside the employer. Some of these situations might now be eligible for the updated DRA process described below.

·There are also no requirements for in-person meetings; instead, Judicial mediations are typically done over the phone or over video.

Judicial Assessment

• The goal of this relatively new idea is to deliver quick, unbiased case evaluations, but it hasn't really taken off in practise because there isn't much information on how it is used or how many hearing days it saves.
• The causes of this are unclear, but they might have to do with its consensual nature (parties with weak cases may avoid it) and the initial assessment plan which is made shortly after the first case management session, frequently lacks sufficient information.
• Although the Judicial Assessment Protocol advises waiting for disclosure or witness testimony, the consensual nature may deter many, especially unrepresented parties, making it less alluring and partially unsuccessful.

Dispute Resolution Appointment

• This year saw the introduction of a new ADR called Dispute Resolution Appointment (DRA), which is important, especially in complex instances. DRAs are required when the Judge deems them appropriate, in contrast to earlier ADR techniques.
• There is an overwhelming backlog of discrimination and whistleblower cases which necessitates DRAs since parties frequently avoid court mediation or assessment, particularly when one side is not legally represented. These cases are intricate and include numerous case management hearings and contact with the Tribunal.
• The Protocol recommends cases that have a six-day or more listing, but the Regional Employment Judge or a nominated Employment Judge has the final say. The criterion may vary by region depending on resource availability.
• Notably, DRAs are required, and while parties may disagree, there are no clear guidelines for the determination. Without a good reason, failing to show up for a DRA "may" be deemed unreasonable, which could result in future cost claims from the opposing party.

The Role of ADR

In order to resolve workplace conflicts, ADR techniques can be utilised in conjunction, such as judicial assessment followed by Judicial mediation, or a DRA followed by Judicial mediation to focus issues.

In comparison to a Tribunal trial, Judicial mediation is optional and private. The agreement is still under the control of the parties, allowing for solutions that would not be possible in a trial, such as agreed-upon references, apologies, or confidentiality. With a rapid and irrevocable resolution that cannot be challenged, it can also address more extensive litigation or disputes, including those that fall outside the Tribunal's jurisdiction.

Alternative dispute resolutions can be complicated and a stressful process, if you have questions, contact our Employment Team today by emailing employment@warnergoodman.co.uk or call 023 8071 7717.