An announcement from the President of the Industrial Tribunal (IT) and Fair Employment Tribunal (FET) on 31 March 2023 details an alternative form of dispute resolution for Northern Ireland, negating the need to go to full hearing – judicial mediation.
What is alternative dispute resolution/ judicial mediation?
Mediation provides the opportunity for claimants to sit down with their employers to attempt to resolve the employment dispute. An employment judge sits as an impartial mediator and will help the parties find an agreeable solution. This process is informal, private, and confidential.
Mediation has been an available method of dispute resolution in England, Wales and Scotland for some time with significant success in resolving disputes.
Benefits of mediation
Mediation allows the parties to retain control. Any decision made is reached by mutual agreement and avoids an adversarial procedure. The alternative is that a judge makes the decision for you.
Employment mediation in Northern Ireland
The President and Vice President of the Tribunals will determine whether a case is suitable for judicial mediation. All parties must agree to participation and provide a decision maker with full authority to make a binding agreement. A good example of where mediation should be particularly useful is where the claimant is still an employee of the respondent, however, all cases will be considered.
The overriding objective – saving time and expense
The IT and FET are governed by the Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (NI) 2020 – commonly referred to as “the Rules”.
Rule 2 addresses the ‘Overriding Objective’ which sets out various considerations for the Tribunal in order to deal with cases fairly and justly. Among these considerations are to avoid delay and to save expense. Undoubtedly, mediation will serve to assist in this regard.
There has been a lengthy back-log of cases being dealt with by the Tribunal since the pandemic. Waiting times to full hearing can be as much as 12-18 months. Time delays to hearings can have a substantial effect on costs, not only legal fees, but in relation to compensatory awards where a significant period elapses from the effective date of termination to the full hearing – something the Tribunal will be keen to minimise.
The future of employment law in Northern Ireland
Rule 3 of the Rules has always encouraged the use of conciliation services to resolve disputes by agreement. The introduction of mediation into NI employment law now provides a recognised conduit for dispute resolution – something regularly relied upon in other forms of civil disputes.
Notwithstanding this recent addition, the UK’s departure from Europe will prompt considerable reform for employment law across all jurisdictions. The Government’s Retained EU Law (Revocation and Reform) Bill may produce the expedient removal of retained EU laws.