Alternative dispute resolution (ADR) provides those involved in disagreements with an option to avoid stressful legal procedures, say Linda Goldman and Joan Lewis.
In March 2011, Acas welcomed the Government’s proposal for potential employment tribunal claims to be referred for early conciliation, in its formal submission to the public consultation on resolving workforce disputes.
The Acas Council said that the plans, published by the Department for Business, Innovation and Skills in January 2011, would allow it to expand its pre-claim conciliation (PCC) service. The development reflects a trend towards using alternatives to legal action, or ADR, to resolve disputes in the workplace.
Occasionally, an occupational health professional will be involved in a lawsuit. This might be an employment issue, an injury caused by an accident, clinical negligence – the list is as long as the index of any law book. The possibilities include bringing or defending a case yourself, or being a witness. However you come to be involved, getting mixed up in the legal system is expensive, involving court fees and bills from solicitors, barristers and experts. The time involved is another expense. Plus there is encroachment on your privacy as the subject of the lawsuit may keep you awake at night.
The law is a demanding taskmaster that nags and burdens participants perpetually, leaving them in a state of permanent jet lag from intrusive thoughts in the night.
Beethoven’s stress-coping mechanism was to polish off a symphony or a concerto. Unfortunately, there are no figures to show whether this is a system that would be or has been useful for dealing with the nightmare of involvement in litigation generally.
Even if the winner succeeds in being awarded costs, there is no compensation for the stress of litigation; no compensation at all for bearing the huge responsibility of being a witness, whether for the winner or loser; nothing to compensate for the delay (which there generally is) in the case coming to a hearing, being cancelled at the last minute or not being heard at the tribunal or court you had expected; nor is there compensation for “the risk of litigation”, which means your side loses when you thought it would win.
Alternative solution
This lack of compensation leads to the search for a better way to resolve conflicts. ADR covers any of the systems designed to achieve non-confrontational resolution of differences between parties as an alternative to going to court. ADR is not an automatic alternative. If it does not work, the court procedures may need to be used.
ADR can reduce hostility (which is of particular importance in an ongoing work situation), lower costs and lead to a more rapid outcome than could be achieved by litigation. There is an underlying requirement imposed on the civil legal system to achieve the overriding objective of coming to a cost-effective and rapid resolution of a case.
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There are many situations in which the courts require mediation (a form of ADR) to be attempted before continuing the litigation process. ADR is not necessarily governed merely by the essential ingredient of the willingness of both parties or their representatives to enter into discussions. ADR may be imposed by the courts in all sorts of civil and commercial disputes, not least of which are employment issues, family matters, personal injury and clinical negligence.
The courts rely principally on mediation as the legal-bypass route. Other forms of ADR include arbitration, conciliation and negotiation. There are ADR sub-species of expert and neutral evaluation and, of particular relevance in professional situations, the office of the relevant ombudsman.
Before anyone with a writ hanging over them gets too excited about ADR being a comfortable, no-frills solution, the case of Halsey v Milton Keynes General NHS Trust [2004] makes the point that: “Mediation and other ADR processes do not offer a panacea, and can have disadvantages as well as advantages: they are not appropriate for every case.”
The Court of Appeal was looking at factors that might tend towards the use of mediation and accepted “that factors which may be relevant to the question [of] whether a party has unreasonably refused ADR will include (but are not limited to) the following: (a) the nature of the dispute; (b) the merits of the case; (c) the extent to which other settlement methods have been attempted; (d) whether the costs of the ADR would be disproportionately high; (e) whether any delay in setting up and attending the ADR would have been prejudicial; and (f) whether the ADR had a reasonable prospect of success in many cases no single factor will be decisive these factors should not be regarded as an exhaustive checklist”.
The following options can help decide whether to choose or reject ADR. After all, a day of shuttle negotiations between the parties’ representatives and the mediator has to be worth it to avoid the time and expense of months, sometimes years, of case preparation and perhaps many days in court.
Arbitration
Mediation is the way of the 21st century. A more formal system is that of arbitration, which is a legal concept of dispute resolution and has its operation governed by the Arbitration Act 1996. The Jewish Beth Din and Muslim Sharia courts (Muslim Arbitration Tribunal) operate as arbitrators under the Arbitration Act 1996.
The process is the resolution of the dispute including examination of evidence as required and designated by a single arbitrator or panel of arbitrators with special expertise in the field of the dispute and who are completely independent of the interests of the parties. Usually, the parties choose the arbitrator(s) or a process is designated for the court to make the appropriate appointment in the event of a dispute.
Contracts often anticipate disputes and provide for them to be resolved by arbitration. It is one of the systems used by Acas to conclude employment disputes.
However, unfortunately for the employer, in the recent case of Clyde & Co LLP v van Winkelhof [2011] the High Court held that the Employment Rights Act 1996 overrides any contractual provision made in advance for using binding arbitration as a method of final resolution of an employment dispute.
Conciliation
Conciliation is conducted by a single, impartial individual, much used by Acas, with the conciliation officer taking settlement offers from each side until an appropriate compromise is reached.
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This may not necessarily involve money: variation to working practices may be at the core of the dispute or the dreaded “matter of principle”.
Where settlement is achieved, financial terms are recorded on a form known as the COT3, which will enable the claimant to withdraw a tribunal claim with the right for the claimant to have the claim reinstated if the employer defaults on the payment. Private terms may be recorded in a compromise agreement.
Conciliation is probably used more frequently in these discrimination-sensitive times. For example, there are occasional cases where hurt feelings may be soothed by an apology, or difficult circumstances in the workplace may be resolved by an action plan. These sorts of outcomes are generally considered to be the province of mediation as well as conciliation.
Mediation
As mediation techniques have become more sophisticated, so the types of mediation have become more specialised.
Evaluative mediation is carried out by a legally qualified mediator who explores and evaluates the actual prospects of success of each party. Facilitative mediation is a form of shuttle diplomacy carried out in employment tribunals, where the employment judge, acting as mediator, takes common points to each party with the aim of concluding an agreement. The system avoids weeks of case preparation, probably saves acres of rainforest and is dedicated to that all-important factor: saving costs.
A short “position statement” is used by each side as the starting point for these cases, which would otherwise take a minimum of four days. The merits of the case are not part of the process of consideration. “Why” is irrelevant. “How much” or any other resolution is what counts.
Transformative mediation takes a more personalised approach and is particularly useful for increasing the parties’ awareness of each others’ point of view, with the aim of repairing or ameliorating damaged relationships. This is important in family disputes but also in ongoing work situations such as the office sex-pest remaining in their post.
Mediation is expensive but you are buying top-grade training, plus the case will be resolved by an independent, impartial and trustworthy mediator who will preserve confidentiality. This applies even if the better-funded person pays for the mediator.
The starting point is the position statement, setting out the name of the representative (if there is one), the basic issues of concern and a bullet-point outline of the facts and the effect on the parties.
It must not be forgotten that there are two sides to a dispute and both parties will have statements. They should both say what the issues are that have prevented settlement of this dispute and what might make either of them change their position. Offers should be listed, with reasons for refusal.
Negotiation
Most people try to resolve disputes before moving into a litigation process. It is only when negotiation does not work that other phases of ADR come into consideration. The parties, having recognised that there are differences, may enter into discussions directly or through their representatives to resolve the situation through informal, without-prejudice discussions.
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Indeed, this process is likely to arise at any stage of a dispute, whether or not it progresses to ADR, litigation, letting the matter drop, or finalising the negotiated agreement by contract. Even if one party wishes to walk away from a dispute, a binding agreement should be drawn up, making the position clear. This, effectively, is how one would hope a grievance process would end. The fact that people are queuing up to take unresolved grievances to the employment tribunals is a sign that this is more of a hope than a reality.
Ombudsman
The ombudsman is an official who operates within public and private sectors. He or she has the right to investigate and resolve complaints. The process is free and the participants are not precluded from litigation when the complaint is resolved. But a condemnatory finding from the ombudsman may encourage parties to settle, as there is a clear, advance indication of what the outcome of litigation might be. The Parliamentary and Health Service Ombudsman is able to investigate complaints about government departments and agencies in the UK and the NHS in England.
After the complaint has been made, the ombudsman informs the party of the allegations, carries out his or her investigations by letter or interview and sets out the conclusions in writing. The basic form of the letter sets out the nature of the dispute, any steps taken to resolve it and, if these have not worked, any additional directions that the ombudsman deems necessary, such as one party issuing an apology to the other or providing a refund of fees.
Are we in agreement? No? Oh well. Then it’s a tribunal or court after all.
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Linda Goldman, BDS, LLB, is a barrister at Henderson Chambers, Temple, London EC4Y 9DB. Joan Lewis, MCIPD, MA (law and employment relations) is an independent employment law consultant licensed by the General Council of the Bar under BarDirect. Any enquiry about this article can be made to Joan Lewis on 020 8973 1953.
