Have you ever pursued a dispute at the courts over a matter of principle? Where you left feeling that it was a waste of time and money? Would you have been better off attempting to use alternative dispute resolution methods such as mediation? Is there a suitable alternative to litigation at court? This article looks at the options that may be available to you if you did not want to litigate your dispute at court.
If you have answered yes to any of those questions then read on. The Employment Rights Act 2006 attempts to put much more of an emphasis on attempting to resolve disputes by the use of mediation and conciliation. A recent survey that had been conducted asking clients how they felt about the legal advice they were offered and the final outcome, found that most clients found the whole litigation process very stressful and also a minefield to come to terms with. The clients were present as parties to the litigation at court not having a clue about what their paid legal counsel representatives were arguing about on novel points of law at court. It was an experience that left them feeling more isolated and alienated about the whole legal process and at the end of the day where unable to comprehend why the court had come to the outcome it had. It left them feeling more alienated towards the legal system and out of pocket at the same time.
It was argued that most of the clients would have taken the quicker exit option and if there was a real alternative they would have taken this up. Indeed, in many commercial disputes alternative dispute resolution is utilised to settle disputes which otherwise would costs thousands to litigate through the commercial courts, and, sometimes with costs exceeding the cost of the dispute itself. There is usually a specific arbitration clause entrenched in the contract that binds the parties to use arbitration if there was a dispute in the contract between the parties and with the arbitrator's decision being binding on the parties.
It seems that this is now the latest fashion to be adopted in the context of employment law with the Employment Bill 2006 putting alternative dispute resolution on a statutory footing by extending the periods in which a claim can be settled by ACAS and as a result trying to reduce the burdens placed upon the tribunal with the number of claims being lodged increasing daily in the employment field.
I will now look at some of the alternatives to litigating a claim at court.
Mediation is when you have a third party acting as a impartial expert talking to both parties separately, as well as together when needed and ultimately tries to help reach a solution that would be acceptable to both sides. The mediator wills also advice you on the prospects of success if you decide to pursue the claim at court and the weaknesses as well. Mediation usually lasts a day. However, mediation is usually only used when there is a necessity to mend relationships between the parties to a dispute which litigation cannot achieve. The decision of the mediator is not usually binding. Mediation may not be a suitable alternative to all disputes and the mediator is certainly not able to impose a resolution on the parties etc. However, a mediator can optimize the needs of individuals and take their feelings and concerns into account in order to represent their needs to a particular dispute.
Conciliation on the other hand is where a conciliator meets with parties to a dispute separately and tries to resolve differences via caucusing and shuttle diplomacy. The same principles of mediation are used a part from the fact that the parties never face each other with a conciliator being present. Conciliation requires there to be agreement on both sides to the decision of the conciliator for it to hold any weight.
Arbitration on the other hand uses an impartial judge as a third party to hear disputes and decide upon a claim. The arbitrator's decision can be final and thus binding on both sides. It will be up to the parties to decide at the outset whether the arbitrator's decision will be binding or not. If it is not then the parties can still pursue the claim in the tribunal or court. ACAS is a recognised arbitrator and the Employment Rights Bill will increase and extend the powers in which ACAS can arbitrate disputes and increases the "window" in which this can be done.
Another option is to use Compromise Agreements in employment law to settle any litigation disputes. Compromise Agreements are the terms of any settlements reached between an employer and employee, and, one of the terms will be that a employee waivers the right pursue some employment related claim via the courts as being a term of the settlement reached between the parties, however, for an agreement to be valid it needs to be in writing, signed by the parties and relate to the specific claim. The party would also need to have access to a solicitor before the agreement is signed otherwise it will be invalid. If any of the terms of the compromise agreement are breached it will be a breach of contract and you can be sued for damages that arise from the breach as a result.
The use of compromise agreements and the benefits they serve has been further entrenched by a proposal whereby it is envisaged that more people will have the powers to sign off a compromise agreement, which, at the moment only a qualified solicitor has the power to do. It will extend the definition of a legal advisor so that these agreements can be signed by other qualified persons as well.
Finally, Arbitration is less formal and faster way of resolving a dispute then a court.
It is a process that is favoured by most as a real alternative to litigation as it not only minimises any costs but it also facilitates harmonious relationships between parties as litigation is seen to be more aggressive and acrimonious between the affected parties. It will also save you a lot of money, as rarely are parties able to claim the costs involved in defending or pursuing a litigation claim at the Employment Tribunal.
Meera Yagnik
Barrister
Temple Court Chambers
meera.yagnik@templecourt.co.uk
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