As Geoffrey Vos says, we are, “on the brink of a revolution in dispute resolution” and ADR should no longer be viewed as alternative, but as an “integral part of the dispute resolution process; that process should focus on resolution rather than dispute”.

Following Geoffrey Vos’ call for evidence in 2021 to consider compulsory mediation of civil disputes the government has confirmed their commitment to integrating mediation in all civil cases. The first step is civil claims under £10,000, which will include employment contract claims, then claims over £10,000.  

The proposal to ‘compel’ parties to mediate has not gone without criticism, with concerns that this is restricting an individual’s right to access to justice. However, in November 2023, the Court of Appeal decided, in Churchill v Merthyr Tydfil County Borough Council [2023] EWCA 1416, that it is not unlawful for the Courts to stay proceedings and compel a party to consider non-court-based dispute resolution processes, such as mediation.

In this article, I explore what integrated mediation is and what this might mean for dispute resolution in other forums, such as the workplace and Employment Tribunals.

What is integrated mediation?

The first step in integrated mediation is mediation of small civil claims valued up to £10,000, starting with specified money claims. All such claims will be referred automatically to a free hour-long telephone session with a professional mediator provided by HM Courts and Tribunals Service.

Whilst the government has moved away from terminology such as ‘mandatory’ or ‘compulsory’, this is, in effect, what integrated mediation is. It does not prevent a party from taking their case to trial if they do not settle. However, the government has indicated that sanctions for non-compliance with the process may lead to penalties for failing to comply with Court rules such as strike out of the claim and / or cost penalties. Whether the Courts take a more lenient approach in certain cases, especially if a party is unrepresented, remains to be seen.  

The consultation also announced the government’s intention to integrate mediation in higher value claims, which will see cases over £10,000 referred to the external mediation market.

What does integrated mediation mean for resolution of workplace / employment disputes?

Currently, integrated mediation only applies to civil claims and the only relevant claims, in a workplace context, would be breach of contract claims up to £10,000. However, can we expect to see a similar process in the Employment Tribunals? Is there a case to be made for compulsory mediation of workplace disputes?

The business case for mediation in the workplace is an easy one, with mediation saving significant management time in dealing with grievances, preserving the employment relationship and reducing the stress and anxiety associated with conflict.

In 2021, a report prepared by ACAS, reported on the cost of conflict to UK businesses, totalling a staggering £28.5 billion. It went on to report that close to 10 million individuals had experienced conflict at work with over half of those having taken time off work as a result of stress, anxiety and depression and an average of 485,800 resigning each year, as a result of workplace conflict.

Is there a case for compelling individuals to mediate in the workplace?

Although the business case for the benefits of mediation in the workplace are clear, compelling parties to mediate can be controversial as currently mediation is a voluntary process.  

Where there is an employment relationship to preserve, workplace mediation can be a powerful tool, to allow the parties to explore, in a confidential space, with a neutral and independent third party (the mediator), the cause of the conflict and whether an agreement can be reached, which avoids a grievance process or lengthy litigation. However, it is important that the parties enter into that process voluntarily and they understand that mediation is not diminishing their legal rights in any way. Certain disputes will also not be appropriate for this type of mediation e.g., where there is criminality involved or where a decision is required such as a dispute over holiday pay or wages.

Are there alternative ways of embedding early conflict resolution into UK organisations?

Some employers have implemented early dispute resolution practices to try and resolve matters outside the adversarial grievance process. Many view that the grievance process is not the way to resolve conflict as it is adversarial which can lead to escalation of the dispute rather than resolution.

A case study carried out by ACAS with East Lancashire NHS Trust between 2016 and 2021 demonstrates that where organisations invest time in early conflict resolution processes and a move away from the rigidity of adversarial ones, this can lead to positive results. The Trust redeveloped its in-house mediation service alongside introducing an Early Resolution policy and training their Line Managers with conflict resolution skills. This resulted in the following:

• The number of individual and group mediations increasing with a reported resolution rate of over 90%;
• Between January 2019 and July 2022, out of 223 cases referred to the Early Resolution Policy and 188 which had concluded, nearly three quarters resolved informally and only 22% progressed to formal procedures;
• Reduction in staff reporting that they had experienced ‘bullying, harassment or abuse at work from another colleague’ from 16.9% in 2015 to 14.1% in 2021; and
• HR and trade union officials reporting a shift away from formal procedures towards alternative mechanisms of resolution.

Whilst the potential benefits outweighed the negatives, there were challenges reported in implementing the policy. Some of these challenges included shifting mindsets and culture, away from procedural based processes.

What if there is no longer an employment relationship to preserve?

Currently, any case issued in the Employment Tribunal will be referred to ACAS Early Conciliation and this is a necessary step to complete, before the Claimant can proceed with the claim. However, how far does ACAS early conciliation go to exploring all of the alternative dispute resolution options available, to resolve the dispute? Should the Tribunal have the power to strike out a claim if these options have not been fully explored or one party refuses to engage with one of these options? These are all questions which, in light of the civil justice reforms, and the Churchill case, are relevant, if we are to see similar reforms adopted in the workplace / employment arena.

Changes are already happening. There is new Presidential Guidance published on ADR on 7 July 2023. Under the new guidance, Dispute Resolution Appointments (DRA’s) are now mandatory in employment cases listed for six days or more (usually discrimination / whistleblowing cases). These appointments are held after the parties have exchanged witness statements and failure to attend or engage will be deemed as unreasonable behaviour and can have cost implications under the Tribunal’s rules.

Whether we are on the verge of an ADR revolution in the workplace / employment forum, is yet to be seen, and further changes are needed if we are to see ADR fully embedded across the lifecycle of an employment dispute. However, these steps are certainly welcome ones, which hopefully will be a step towards early conflict resolution, so watch this space!

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