Last week we reported on the new Presidential Guidance on Alternative Dispute Resolution which has been published by the President of Employment Tribunals of England and Wales, Judge Barry Clark. It promotes the four types of ADR available in employment tribunals with the aim of cutting the enormous backlog in the tribunal system and it is useful because it sets out how the different types of ADR operate in practice.
The four types are: using the services of ACAS; judicial mediation; judicial assessment; and a dispute resolution appointment. That last one, dispute resolution appointment, is new and follows a successful trial in both the West Midlands and Bristol areas. We covered it last week in ‘New dispute resolution appointment to be introduced in employment cases’ with lawyer Rebecca Sulley talking about the pros and cons of this particular form of ADR, which is compulsory by the way.
We are returning to this to hear more about two of the other types of ADR which are covered by the guidance, namely judicial assessment, and judicial mediation. A reminder. judicial mediation is where a judge facilitates a resolution between the parties, typically in case of 3 days or more, and as the guidance explains it has a success rate of 65-70%. In contrast, judicial assessment is where a judge evaluates respective parties’ prospects of success and remedy, while remaining impartial. It can be used in any type of claim, regardless of duration or complexity.
Both of those forms of ADR have been around for a long time and, naturally, we have a lot of experience of both types over the years. So, let’s hear more about our team’s recent experience of them with help, again, from Birmingham-based lawyer Rebecca Sulley. First judicial assessment:
Rebecca Sulley: “So, with judicial assessment we’ve found that we haven't seen much of that happening in practice. So, it is a requirement on your preliminary hearing agenda form that you tick whether or not you'd be interested in judicial assessment, but in our experience it isn't really something that judges raise. I have had some experience in doing it, and particularly success in asking for an assessment when it comes to remedy. So, that was a case where a claimant had submitted an extremely large schedule of loss for over a million pounds and their case just wasn't worth that so I’d asked the judge, please can you do a judicial assessment just in relation to the likely outcome if the claimant was to be successful, and the judge helpfully talked through the schedule of loss and explained to the claimant what parts of the schedule of loss were really quite unrealistic and that did result in a slightly better position for us at the end because the claimant submitted a revised schedule of loss which was far more reasonable. So, that can be of assistance. In addition, we have had a judicial assessment take place to give a view on the merits of the case but rather than a quick view based on the claim form and the response, we were actually required to submit a large number of documents and a witness statement so that was more akin to an ADR process and, again, not really something that was appropriate in that particular case at that time and didn't really save us the cost. So, I think it very much depends upon the case, it depends upon the judge, but we haven't seen a huge amount of use of judicial assessments in practice.”
Joe Glavina: “So moving on to judicial mediation, Becci, which has been around a long time, since 2006. I know you’ve been involved in many judicial mediations. What’s recent experience been like?”
Rebecca Sulley: “So, judicial mediation is something that tribunals are very keen to promote because they do have a high success rate, they do save a lot of time in tribunal, and they can list them pretty quickly. So, for example, we asked for one recently where both the claimant and ourselves were in agreement that we wanted a mediation, we had a very short preliminary hearing listed within about three weeks of requesting it, and we had the full mediation listed probably within another four weeks of that, so that was quite a quick turnaround in the process and in practice I've had quite a lot of success with them. It's very helpful, in particular, with unrepresented claimants because you have a judge who is explaining to them what kind of compensation they might get and although the judge is not advising them and, obviously, can't recommend an offer, they can explain well, you know, this is what you might get if you actually went to hearing. So, it can put it into a bit of perspective for them and the benefit of that, of course, as well, is that you're encouraged very much by the judge to come up with alternative solutions. So, whether that be to pay for things like outplacement support, or something else that the claimant might be interested in, or a statement of regret. So that can be quite helpful to think of things not just on the monetary side, but other incentives to obtain a settlement. So, we've had a lot of success with them and although it's a very long and full day in tribunal, or virtually, which is how they tend to be done now, often you'll result in a settlement either on the day or, if not, shortly afterwards. So, we've had a lot of success with them and I think we'll be continuing to see their usage remain high.”
Joe Glavina: “I see Judge Barry Clark is pushing judicial mediation quite hard in this guidance and you can understand why, given the very long waiting times for cases to reach a full hearing.”
Rebecca Sulley: “Yes, absolutely. I think the hearing lengths are still quite a long way in advance, especially in the tribunals in the south in particular. In London we’re seeing hearings listed for 18 months, sometimes two years away, and to have a judicial mediation listed before you have to incur the costs of preparing bundles, doing witness statements, it makes financial sense for everyone involved, really. So, I think we're seeing a lot more claimants willing to take part in that as well to get a resolution to their claim.”
That new Presidential Guidance was published on 7 July and is well worth reading if you use the employment tribunals. The Appendix includes three protocols explaining how judicial mediation, judicial assessment, and dispute resolution appointments work in practice, very clear and well written. We’ve put a link to the Guidance in the transcript of this programme for you. We have also included a link to last week’s HRNews programme on Dispute Resolution Appointments.
LINKS
- Link to HRNews programme ‘New dispute resolution appointment to be introduced in employment cases’
