Other ways of resolving your case

What is Alternative Dispute Resolution, and why is it important?

The concept of “Alternative Dispute Resolution” (ADR) is all about finding ways to resolve a dispute that do not require a judicial decision.

Employment Tribunal proceedings carry a cost. That cost might be a financial one, like legal fees. In the Employment Tribunals, each side generally bears their own costs; orders to pay the other side’s costs are rare. Even if the parties do not engage a professional representative (and the Employment Tribunals are well used to dealing with parties who are not professionally represented), there may be a cost resulting from the time that they and their witnesses spend away from work in preparing for and attending a hearing.

There is also a cost borne by the public purse, as there is in any system of justice. Each Employment Tribunal hearing needs a judge (and sometimes non-legal members as well), a hearing room, and a clerk, and it requires a range of administrative and technical functions performed by HMCTS.

Like much litigation, Employment Tribunal hearings also carry an emotional cost: preparing for and attending a hearing, and dealing with the aftermath, can be stressful. The more complex the case, the more disruptive it may be to the lives of those involved in it or affected by its outcome. It may be especially disruptive where the parties are in an ongoing employment relationship, or where the employment relationship involves people in the same family.

In reaching its judgment, a tribunal must identify the issues, decide the relevant facts, apply the law to those facts, and then tell the parties who has won or lost in respect of each part of a claim. Even if the issues the tribunal must consider are agreed, and the law the tribunal must apply is clear, the evidence must still be heard and tested so that the relevant facts can be decided. In nearly all cases, the outcome cannot be predicted with certainty before the tribunal has evaluated the evidence. It follows that nearly all cases heard by the Employment Tribunals involve risk for the parties. That risk can be financial, emotional and reputational. Reputational risk can arise because Employment Tribunal hearings are held in public and judgments are stored on publicly on a register. You can read more about this in the After the hearing section.

Even when the outcome is known, the tribunal’s approach to remedy (usually in the form of compensation) also cannot be predicted with certainty before the tribunal has evaluated the evidence. Sooner rather than later, opposing parties to a dispute must address their minds to the value of a case. The question “will this claim succeed?” must be accompanied by “what is this claim worth?”

Each Employment Tribunal case resolved through agreement allows parties to minimise these different types of cost and risk. Some cases may ultimately need to be fought all the way to a hearing, but many cases can and should be resolved quickly and allow the parties and their witnesses to move on with their lives. The resolution of a case also frees resources to be used on other cases, whether in the Employment Tribunals or the wider justice system. Indeed, more cases are listed by the Employment Tribunals for hearing than there are resources available to hear them, because of an assumption that a high proportion will be resolved, whether through a private settlement, a compromise agreement or conciliation by ACAS (external link).

The Employment Tribunals must of course decide a case where the parties cannot reach agreement. But they can and should encourage them to resolve their cases by agreement.

Four approaches to ADR

There are four approaches by which the Employment Tribunals may encourage the parties to resolve their dispute by agreement: (1) using the services of ACAS (external link); (2) judicial mediation; (3) judicial assessment; and (4) a dispute resolution appointment.

You can read more about them, and the associated protocols, in the Presidential Guidance on ADR.