Resolving a workplace dispute with as little time, expense and stress as possible is vital for the ongoing success of your business. Either refusing to deal with a problem early on or taking it all the way to litigation can be ineffective means of ensuring these savings.

Employment tribunals are often the most effective way of resolving certain disputes but it is worth being aware of the alternative solutions offered by mediation, conciliation and arbitration which could help make important savings for your business.

Why use alternative dispute resolution?

According to employment solicitor Jonathan Mansfield of solicitors Thomas Mansfield the time and cost of litigation can often make it “a no-win situation.” Mansfield says this is why alternative dispute resolution (ADR) has become increasingly common in employment law, a trend which, thanks to heavy promotion, he believes is likely to continue.

Apart from the economies offered by ADR, there is also the benefit of confidentiality, says Jane Mann, of employment solicitors Fox Williams. Any litigated case of significance is likely to end up in the press, she says, a factor that “totally alters the dynamic of a case.”

Mediation

The parties meet to discuss the dispute in the presence of a mediator who helps facilitate an agreement. “The parties have control and do not have to commit to anything that they do not agree with,” says Jane Mann. “The mediator is useful for urging both sides to reach a resolution.”

Your employment solicitor will not normally be present in a mediation and you will be discussing matters face to face. This provides a non-confrontational atmosphere in which the parties can explore the issues together. This hopefully means that an agreement can be reached which both parties are happy to implement so they can continue an amicable working relationship.

The first stage of proceedings allows the parties to put across their side of the story and helps the mediator to understand what each wants to achieve. The following stages will be dealt with in joint sessions. The aim is to build and write an agreement together. The agreement is not legally binding but since it is mutually agreed upon the idea is that both parties are happy to implement it. In some cases no agreement can be reached.

The mediator is trained for their role as an impartial third party presence. Mediators are available through commercial firms and through the employment relations service Acas, which is free.

“Official ADR can add a further layer of costs on top of your own legal costs,” says employment solicitor James Simpson, of Oxford-based law firm Henmans LLP. “However, for more complex cases that would take several days at tribunal, mediation might be cheaper, cutting down on legal expenses and money lost due to management downtime.”

Conciliation

“This Acas service automatically kicks in once tribunal proceedings have begun and is the most useful form of alternative dispute resolution,” says James Simpson. Indeed according to Acas about three quarters of employment tribunal claims are resolved through this method.

Conciliation employs similar principles to mediation but differs in that any agreement reached is legally binding. Mediation helps deal with general workplace issues while conciliation is used when there is a specific legal issue.

The procedure is organised by an independent Acas conciliator whose services are free of charge. They will seek to find common ground for a settlement before the matter reaches an employment tribunal. As with mediation, conciliation allows for a more flexible agreement that requires the approval of both parties to have authority.

The process can be carried out through your employment solicitor who serves as your representative.

Arbitration

Arbitration helps settle a dispute by allowing an impartial third party to hear the case and make a decision. The hearings are more informal than a court with the arbitrator asking the questions and deciding on procedural and evidential matters as it proceeds.

“Arbitration is very rarely used in employment disputes,” says Jane Mann. “In handing over the decision to someone else you may as well go to an employment judge. It is cheaper but in this complicated area of law you are probably better off having a judge who would understand it better.”

Useful links

How an employment solicitor can help your business

Acas - Disputes and mediation

DirectGov - Mediation, conciliation and arbitration