Speak softly...

We had better not count chickens but it was heartening to see the report by Chloe Smith in the Law Society Gazette yesterday about evidence presented to a House of Lords committee this week.

The headline assertion is that fees for Employment Tribunal claims are taking away the incentive for employers to engage in the Early Conciliation scheme (EC) introduced last year.

On the face of it, EC was a cracking innovation.  The essence of it is a rule that sacked employees and others with complaints against their (former) employer cannot begin Tribunal proceedings until they have attempted mediation.

ACAS has a responsibility for the management of the scheme.  I have expressed doubts about the adequacy of resources and procedures there before. I have seen very little information on how the scheme has worked in practice over the last 12 months.

But the big thing with mediation, from the outset, has been the difficulty of forcing participation. I first wrote about this in Mediation's Achilles heel and have made the point that in this scenario you can usually make the horse drink but the question is whether you can get it to water?

The EC scheme is clever in its simplicity.  You can’t begin a claim unless you have attempted mediation and have a code number to prove it, to be displayed on your application to the Employment Tribunal if and when efforts fail.  We all know of course about the short time limits in the Tribunal and further legislation provides that time stands still for a short period whilst attempts are made to settle.

The new scheme came in a year after the introduction for the first time of fees for Tribunal claims. The detail was examined in Fire at will and the most relevant statistic is that it now costs an unfair dismissal claimant a total of £1,200 in tribunal fees to pursue a claim.

That’s somewhere close to the average monthly wage and, to be clear, that’s for tribunal fees only – no solicitors costs included in that figure.

A lot of us said that this would have a devastating impact on claims and effectively amount to a barrier to justice.  The figures have demonstrated that, as reported in Access denied.

The trade union, Unison, has made two attempts to judicially review the fees regime and been unsuccessful but was encouraged by comments by Court of Appeal judges last week - see Judges urge review of tribunal fees.

Now the House of Lords Committee has been told of the effects in practice.  One specialist said that there is a clear shift towards employers just saying “no, issue your claim and then we will talk”.

In individual cases, employers are far more inclined to take the risk that proceedings will be issued, knowing that the majority of claimants have so much to lose, sums that they simply cannot afford. Worse than that, according to one employment silk, the collective effect of this is that employers are being more bullish across the board because they feel less pressure to settle matters generally and have more available budget for legal fees to fight!

At the end of the day it is quite simply a system that does not work because it is so horrifically one-sided.  We can expect the same to happen in many civil claims in our county courts as a result of the eye-watering increases in court fees rushed in by the former Lord Chancellor, Christopher Grayling, just prior to the election.  See Road to ruin.

I explained there why mediation is not the silver bullet.  It is consensual.  It won’t work where one side holds all or most of the cards and simply wants to win.

Let’s have a quick look again at how that works in practice.  I’ll play the bad guy, hell bent on winning at all costs... 

Decent person – “this court business is all too expensive for me but fortunately there is a practical alternative to help us reach an agreement that you should pay me at least some of the money I think I am entitled to.  Let’s go and mediate.

Me – Go boil your head.

Decent person – Oh please! I can’t afford to go to court.  Can’t we mediate?  Everybody says it’s such a good thing.

Me – “have a nice day – loser”.

(Sound of door slamming followed by tears)

Here is the weakness of mediation – of which, don’t get me wrong, I am an advocate – because you can’t, save by some fundamental changes to the principles of our justice system, force it upon people. Some would say that it is akin to trying to negotiate with a terrorist.  

Former US president Theodore Roosevelt is famous for the maxim, “speak softly and carry a big stick”. There are no two ways about it – that is the reality of litigation.  I am all for speaking softly, nicely, collaboratively - and trying to engineer a solution which is good for everybody involved.

But rarely can it be done without the threat of something more unpleasant if the opposition won’t play ball.  It needs a big stick. 

The trouble is – as this government will now find on the road to Damascus – that all the big sticks are on one side of the table, because nobody on the other side of the table can afford one.