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7th March 2019

Why aren’t we mediating more employment disputes?

7th March 2019

Why aren’t we mediating more employment disputes?

David Roath

Posted: 7th March 2019

T: 023 8048 2238

E: Email Me

Employment disputes are rarely settled by mediation. I think employment lawyers need to consider mediation as a useful option for resolving cases in the employment tribunal.

I had a meeting recently with an employment solicitor at another firm in the region. She had qualified recently as a mediator and we talked about employment mediations and the scope for a referral network. My initial response was that we don’t see many employment mediations. Sadly this is true but it got me wondering why this is the case (or still the case)?

My experience as an employment lawyer contrasted sharply with that of my colleague in our Dispute Resolution Department who was also at the meeting. He has been mediating cases for years and he finds that the majority of cases in the County or High Courts will end up in mediation. The statistics support this. The Civil Justice Council’s Interim Report on the future role of Alternative Dispute Resolution in 2017 reported findings from a “senior group of experienced mediators” that 87% of mediation cases involved either commercial contract (45%) or professional negligence disputes (42%) with the next highest being intellectual property (5%). Employment disputes made up 2% of the mediation workload. I wouldn’t argue with these figures. So what are the objections or impediments to mediation in employment tribunals?

Cost

I have seen it stated that employment disputes are often of low value which makes mediation unattractive (as being proportionately more expensive). It’s true that, if you have a million pound share dispute then there is more at stake and the parties are willing to spend a good few thousand pounds on a mediation. Often these mediations will have an expensive mediator and both solicitor and counsel will attend for the parties. No wonder they get pricey quite quickly.

Just because some civil mediations will get expensive does not mean that they have to be. It is possible to get a day’s mediation for a relatively modest sum (say £1,000) and the cost can be split between the parties. Parties can be accompanied by a solicitor or counsel. Having both is often a luxury which isn’t needed. Cost should not be an impediment to mediation.

ACAS

Employment lawyers have the benefit of having ACAS in the background. ACAS does a great job and I am always grateful when a conciliator helps me conclude a case. However, it’s not a mediation and cannot provide the benefits of a private mediation.

Judicial mediation

Parties to employment tribunal claims are offered the chance to have a judicial mediation. However, who does this? I have tried once and on that occasion my application was turned down by the employment tribunal because the Judge felt the parties were so far apart it was not worth the judicial time to try and mediate.
So what’s stopping us? There are numerous advantages to mediating:

Time cases are taking

Employment tribunal cases used to be heard quickly. When I started out, we would often get a hearing date within a matter of months of the Response being filed and cases would be wrapped up quickly. Now, it takes an age for cases to be listed. Once they are listed the hearing date is often a distant event. Even worse, on the eve of the distant event, it is often postponed due to a lack of judicial resources.

Length of hearing

It might be me but cases seem to be getting longer these days. When I first started as a tribunal advocate the one day unfair dismissal case was common and the case would be heard and judgment given all by 4pm. In recent years, case listing seems to have got longer.

Cost

It may sound obvious but, if you can avoid going to trial, you avoid the most expensive bit of the case. Cost is a factor in trying to settle early. However, cases settle close to the hearing because, often, real focus is afforded by clients (and sometime lawyers) closer to the hearing. The client who was going to fight the case whatever will often soften this attitude once the appointment on the witness stand gets uncomfortably close. If you can get everyone together earlier (i.e. at a mediation) you can get that pre-trial focus a lot earlier.

Outcomes

The outcomes that can be achieved at a mediation are much broader than those which can follow a judgment in the employment tribunal. Parties are often seeking something from the employment tribunal which doesn’t exist. That something (or close to it) might be possible through a mediation.

Given all of what I say above, why are we not mediating more often? It must be a mindset thing and employment lawyers don’t have the mindset that civil litigators do. That mindset change must have come from somewhere and I guess it was led by the changes in the civil procedure rules. Maybe it’s time that the employment tribunal started encouraging parties to mediate?

I would be interested to hear from employment lawyers as to what they think and, if they don’t ever consider mediating, why not? My view is that the employment tribunal system is creaking and it will take a long time for the judicial and administrative resources to get back to where they were (and need to be). Even when and if this happens, there is nothing to stop us getting more creative in our use of mediation as another tool in the box.

Given that there is another way, perhaps we should all be giving it a better go? 

I am a qualified ADR meditator.

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David Roath

Posted: 7th March 2019

T: 023 8048 2238

E: Email Me