Comment : Tribunals Service Early Dispute Resolution Project
(January 2007)
The Tribunals Service is currently running an Early Dispute Resolution project which aims to test whether alternative dispute resolution processes can be effective in dealing with some tribunal cases, without the need for a hearing. The project approach involves operating and evaluating pilot ADR services. The first is looking at mediation by tribunal judiciary in Employment Tribunal discrimination claims, and the second looks at early neutral evaluation of disability living allowance appeals in the Social Security and Child Support Appeals (SSCSA) Tribunal. Ultimately, the project will produce recommendations about ADR in mainstream Tribunals Service provision. Tony Wall talks about the project.
The employment tribunal pilot began in August 2006 and will run until the end of March 2007. It is operating in three regions, London Central, Birmingham and Newcastle and is targeting more complex disability, sex and race discrimination cases. Involvement in the pilot is entirely voluntary and parties are free to refuse the offer of judicial mediation or to withdraw from the process at a later stage if they wish to do so. Additionally, a tribunal chair participating in mediation will be disqualified from involvement with any subsequent hearing where mediation is unsuccessful.
A team from the University of Westminster has been appointed to evaluate the pilot, focusing particularly on effectiveness, costs and user satisfaction. The outcome of the evaluation should be available in October 2007.
There are, on the face of it, some potential overlaps between judicial mediation and the statutory role of Acas to attempt conciliation in most employment tribunal cases. The judicial mediation pilot has been constructed carefully and through extensive consultation with Acas to avoid any such overlaps. In cases where parties express interest in judicial mediation Acas are notified so that they have a proper opportunity to try to make conciliation work and a delay is built into the judicial mediation process to allow for this. Judicial mediation is seen very much as being complementary to Acas conciliation services with the clear aim of avoiding hearings, not conflicting with Acas's independent role.
The SSCSA Tribunal pilot remains in the development phase at the current time. It aims to reduce the number of hearings required in disability living allowance (DLA) appeals. The approach will be for a small number of existing tribunal chairs in the pilot locations to provide an early neutral evaluation (ENE) service. Under this process, DLA cases will be subjected to an early assessment on the papers so that an initial view of the likely case outcome can be obtained with the objective of securing earlier resolution through discussion with one or both of the parties, where appropriate.
Again, involvement of the pilot will be entirely voluntary. Opting out or where ENE is unsuccessful will have no bearing on any subsequent hearing. The aim will be to try to get the appeal resolved without needing a hearing, to the greater convenience for everyone involved. Like judicial mediation, the SSCSA Tribunal pilot will be subject to independent evaluation of its effectiveness, cost and satisfaction with users.
There is more work to do in connection with the SSCSA Tribunal pilot, including further development of the processes involved and working with appellant representative groups to take on board their views and give the pilot a good chance of success.
What are the drivers for this work? The Department for Constitutional Affairs – of which the Tribunal Service is part – operates under a public service agreement target to deal with matters outside of the courts and tribunals wherever possible. And, like other government departments, DCA is subject to increasingly tighter financial constraints – earlier resolution of cases through less formal means ought to result in efficiency savings. An equally, if not more important consideration however, is the needs of users. We know that appellants and claimants frequently find the business of tribunal hearings daunting and stressful so anything that can dispense with a hearing should be a good thing. We hope these pilots will tell us.
If you have further questions, or would like to hear more about this project, email enquiries@cot.gsi.gov.uk.