Employment Tribunals President issues updated guidance on alternative dispute resolution and judicial mediation

New guidance includes protocols on approaches to encourage pre-hearing agreements by ‘judicial assessment’ and ‘dispute resolution appointments’ in addition to judicial mediation

The Employment Tribunals President of England and Wales Judge Barry Clarke has issued updated guidance on alternative dispute resolution and judicial mediation.

Introducing Presidential Guidance: Alternative Dispute Resolution, Judge Clarke advises that –

'This guidance concerns the way in which the Employment Tribunals in England and Wales give effect to their duty under rule 3 of the ET Rules [as set out at Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013] in respect of alternative dispute resolution (ADR). It supersedes the Presidential Guidance on ADR that was issued on 22 January 2018. It has been influenced by the experience of mediation on telephone and video during the Covid-19 pandemic.'

The guidance goes on to confirm that, in addition to using the services of ACAS to facilitate mediated agreements, there are three forms of preliminary hearing which, in exercising their duty under rule 3, the Employment Tribunals may encourage parties to resolve their dispute by agreement –

  • Judicial mediation – a ‘consensual, confidential and facilitative process’ with a focus on cases listed for three days or more which are usually claims of discrimination and whistleblowing detriment, as well as more complex claims of unfair dismissal;
  • Judicial assessment – a ‘consensual, confidential and evaluative process’ that can be used in any case, regardless of the type of claim and duration of the hearing. An Employment Judge will use their skills and experience, based on the information available at the time, which may be limited, to give the parties an evaluation of their respective prospects of success and possible outcomes in terms of remedy, while remaining impartial; and
  • Dispute resolution appointment – a ‘non-consensual, confidential and evaluative process’ that focuses on cases listed for six days or more (but this may vary according to Employment Tribunal region) which are generally the most complex claims of discrimination and whistleblowing detriment.

Further details of each of these approaches are set out in the appendices to the guidance.

Presidential Guidance: Alternative Dispute Resolution is available from judiciary.uk