Removing the ‘A’ from ADR is key because dispute resolution should be the norm – in all cases – not ‘alternative’ or ad hoc or occasional.
I would argue that the first essential step (in most cases) is to avoid disputes by ‘AIRing’ the issues to prevent a dispute arising. This will not work in all cases, for example, serious harassment where the perpetrator needs to be appropriately managed, gross misconduct which will lead to summary dismissal or cases where there is a rogue employer determined to flout employment law.
The second essential step is for lawyers to discuss with their clients the possibility of resolving the dispute at the earliest opportunity; this must be mandatory. This should at least include a call to the other side –banishing the idea that making the first approach is a sign of weakness. The parties can then consider the most suitable DR tool which may be a roundtable meeting between parties and lawyers, online or telephone mediation, mediation with an Employment Tribunal judge or a full-blown commercial mediation (the most expensive option).
The Employment Tribunal Rules provide that ‘A Tribunal shall wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement’. It is now common to ask the parties if they have considered dispute resolution (of some kind) and the new Early Neutral Evaluation (ENE) in Employment Tribunals should help move the parties towards resolving their disputes thereby avoiding a full Hearing.
Most lawyers know that litigation is bad for clients – being expensive, uncertain, stressful, time consuming and can be risky reputationally. However, not all lawyers make sufficient effort to steer the client away from the courts and tribunals into dispute resolution. It is not always easy. The client may be determined to get justice believing this can only be achieved through a tribunal win (not believing they could lose) and there are some lawyers who are propelled along the litigation route so they can meet their costs targets; early settlement does not pay.
LJ Briggs said, at the Garden Court Chambers Mediation evening, that empowering parties to resolve disputes is going to be central to the online court agenda. This is exactly what YESS does now – providing advice to clients (employee and employers) on their rights and obligations, possible options and how to negotiate to achieve their objective.
YESS hopes to take this a step further with an online interactive dispute resolution website called Route to Resolution (R2R). The aim is to inform clients of their rights and how to negotiate thereby reducing the time (and costs) of lawyers. What is essential with all new things ‘online’ is that there is a human lawyer ready to advise before the end of the process. I may be old fashioned and self-interested but I do not believe that Artificial Intelligence and robots can completely replace lawyers and judges – at least not yet….