Alternative Dispute Resolution in the workplace
Our new team member, Karina Holland, joined the busy Taunton Employment Team earlier this year and is off to a flying start. She has been assisting a number of clients with alternative dispute resolution (“ADR”) and offers a guide to ADR for employment disputes. Do get in touch with Karina if you need any support with ADR.
ADR relates to processes aimed at resolving legal disputes without a full hearing in a Court or an Employment Tribunal. The collective term of ADR encompasses various recognised methods to achieve a settlement. It is worth remembering that ADR is a voluntary process which requires the parties to agree to conciliate the matter, so if one party is reluctant this alternative route would not be viable.
What form does ADR take?
The most commonly used method in the context of an employment dispute are mediation and conciliation. Judicial mediation and Arbitration may be more suitable after proceedings are issued.
When is it appropriate to resort to ADR?
ADR can be used at any early stage to resolve a dispute whilst an employee still works with you or after they have left. It can also be used when Tribunal proceedings are in full swing.
Types of ADR:
- Conciliation – A conciliator can be appointed who is independent. They would discuss the dispute with both the parties involved in an effort to reach some sort of agreement. This is normally done through separate meetings with the conciliator talking with both parties and reviewing the issues.
- Mediation – this is the process where an independent third party facilitates a discussion between both parties in an attempt to find a mutually agreeable solution. This third party will be neutral. The mediator is there to facilitate and not be actively involved or decide on the dispute. Often ahead of the meeting, the parties would prepare a case summary together with supporting evidence which will be submitted to each other. The mediator will lay out the ground rules. After an initial meeting, the mediator may decide to hold a series of individual, private, and confidential discussions with each party to understand their respective position in full and attempt to come to a settlement. When the parties mutually agree the terms of the settlement, an agreement would be drawn up for the parties to sign. It becomes a legally binding document when fully executed by the parties.
- Judicial mediation – This is a scheme made available by an Employment Tribunal where proceedings are under way. A case would need to be selected by a Tribunal as being suitable for this form of ADR. The Judge will then act as a Mediator. If no settlement is achieved, the Judge will no longer be involved in the matter. This is a free option which cut short lengthy proceedings. This forum is favourable when the matter is particularly contentious, and the parties need the reassurance that the matter is disposed of in a genuinely neutral way. However, the lack of formal rules can make it challenging for the parties to reach a settlement.
- Arbitration – This can often be more suitable for employment disputes involving large sums of money or commercial disputes. This is most likely to be used when the employment has ended. An impartial outsider is appointed, known as the arbitrator, to make a decision based on all the issues and evidence. The Arbitrator will impose a resolution which will be enforceable on the parties and decide if any compensation shall be awarded and the value.
How does ADR beat a full hearing?
ADR can be cost-effective and less time consuming than Tribunal proceedings. In all claims, there is a litigation and reputational risk to consider. The outcome of a full hearing is unpredictable and depends on many factors outside of your control. Tribunals are also stressful on the parties.
Do consider ADR as it can provide a less daunting environment to settle a dispute and could lead to a decision tailored to your situation. For example, a settlement sum can be staged or other remedies can be included. ADR can preserve confidentiality and reputations.
If you have a claim threatened or issued against you and are uncertain about the next steps, please contact us for further advice.