A shake-up for alternative dispute resolution in UK employment tribunals

A new form of dispute resolution is being rolled out in all Employment Tribunals after a successful three-year pilot in Birmingham.

Parties in longer cases, likely to mean those cases listed for a final hearing of 6 days or more, may be required to attend an appointment with a judge called a 'dispute resolution appointment'. Unlike judicial mediation, this form of intervention takes place later in the proceedings, after exchange of witness statements, when a more informed evaluation of the merits of the case can be given by the judge. This appointment would be held on a confidential, without prejudice basis and the judge conducting it would have no further involvement in the case if it did not settle after the appointment.

The primary purpose of the new procedure is to free the employment tribunal hearing lists of cases that are capable of settlement, long enough before the hearing date to enable other cases to be put into the list if they do settle. Currently, the last-minute settlements of long cases mean that listing time cannot be used effectively, contributing to delays in the system.

The President of Employment Tribunals in England and Wales has issued updated Presidential Guidance on alternative dispute resolution that includes the new procedure. The Guidance explains the four types of ADR that are available to encourage parties to resolve their cases by agreement: Acas conciliation, judicial mediation, judicial assessment, and dispute resolution appointments. The Guidance includes three appendices that set out the types of case suited to judicial mediation, judicial assessment, and dispute resolution appointments and the process involved.

The new dispute resolution appointments will last up to three hours and will be non-consensual, confidential and evaluative, meaning that the tribunal may arrange an appointment even if the parties do not want one. It is only the appointment that is non-consensual however, and no outcome can be imposed on the parties. It is therefore still possible that a case will go on to a full merits hearing before a different judge if the dispute resolution appointment does not lead to settlement.