ADR for employment lawyers: lessons from the Civil Justice Council?

Peter Frost, Partner in our London office, has published a post on our Employment Notes blog reviewing the current and potential use of ADR in employment disputes.  The post, which was first published in the Employment Lawyers Association (ELA) Briefing March 2019, can be accessed here.

As we have previously reported, Peter has co-chaired various reports on this issue by the ELA’s Arbitration and ADR Group.   The findings of those reports are discussed in the briefing “Employment ADR: The future” prepared by our Employment team in 2018,  which also considered data collected during the 2016-17 Global Pound Conference Series in the context of employment disputes in the key jurisdictions of Australia, France, Germany, Spain and the UK.

If you are interested in discussing the use of alternative methods for resolving employment disputes, whether that be introducing a workplace mediation scheme or exploring options for resolving an ad hoc dispute, please do get in touch with Peter or your usual Herbert Smith Freehills contact.


Report on the use of ADR in employment disputes

The Employment Lawyers Association (ELA) has issued a report examining the potential for greater use to be made of ADR in employment disputes.

The report was prepared by an ELA working group, co-chaired by Peter Frost, partner in Herbert Smith Freehills’ employment team in London, and Paul Goulding QC.   It considers the current and potential use of various forms of ADR for resolution of different types of employment disputes, including private mediation, judicial mediation and early neutral evaluation.   It also makes recommendations for governmental consultation on potential legislative changes to encourage the greater use of ADR both at the pre-action stage and post issue of proceedings.

A copy of the report can be accessed here.


Arbitration and ADR in employment disputes

The Employment Lawyers' Association (ELA)  has established an Arbitration and ADR Group to consider the level of interest in arbitration to resolve employment disputes and the scope for its greater use in the future, along with early neutral evaluation, mediation and other forms of ADR.

The working group, established by the ELA's Legislative & Policy Committeee,  is co-chaired by Peter Frost (Partner, Herbert Smith Freehills) and Paul Goulding QC (Blackstone Chambers). The group's terms of reference are:

1.    To explore the scope for the greater use of arbitration and ADR (including early neutral evaluation and mediation) as a means of resolving employment disputes.

2.   To consider taking steps to facilitate the greater use of arbitration and ADR in employment disputes (including drafting standard arbitration rules for employment claims).

3.   To liaise with other professional associations of lawyers regarding the use of arbitration and ADR in employment disputes (including the European Employment Lawyers Association, the International Bar Association, and the American Bar Association).

4.   To report to the ELA's Management Committee and members on the work of the workking group, and recommend training and other steps to encourage and facilitate greater use of arbitration and ADR in employment disputes.  

We will report on developments from the working group  in due course,   For background on the current use of mediation in employment disputes, see our ADR Practical Guide: Mediating employment and workplace disputes.


ADR Practical Guide No. 7: Mediating employment and workplace disputes

We are pleased to launch the seventh guide in our series of ADR Practical Guides, designed to provide clients with essential practical guidance on various processes falling under the banner of alternative dispute resolution (ADR), with a particular focus on mediation.

Guide No. 7: ‘Mediating employment and workplace disputes’ outlines how mediation can be used to resolve disputes in the employment context and offers a number of practical tips for getting the best result.  It also examines specific mediation and conciliation schemes offered by the Employment Tribunal and by Acas (the Advisory, Conciliation and Arbitration Service).

Previous guides in the series can be found on our ADR webpage, including:



USA: Occupational Safety and Health Administration Announces ADR Pilot Programme for Whistleblower Complaints

The Occupational Safety and Health Administration (OSHA), which is part of the United States Department of Labor, has announced that it is implementing an Alternative Dispute Resolution (ADR) pilot programme for certain whistleblower complaints.   OSHA’s mission is “to assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” Continue reading

Federal Mediation and Conciliation Service plays key role in NFL-NFLRA agreement

The Federal Mediation and Conciliation Service (FMCS), created in 1947, is an independent United States government agency whose mission is to “preserve and promote labour-management peace and cooperation.”  Headquartered in Washington, D.C., with 10 district offices and more than 60 field offices, the agency provides mediation and conflict resolution services to industry, government agencies and communities.  Federal mediators may make suggestions and offer procedural or substantive recommendations with the agreement of both parties.

Two federal mediators from FMCS recently assisted in reaching a resolution on 26 September 2012 in the high profile dispute between the National Football League (NFL) and the NFL Referees Association (NFLRA), the labour union that represents the NFL game officials.  FMCS began assisting the NFL and the NFLRA in May 2012 with negotiations for the successor collective bargaining agreement.  The dispute hinged, amongst other things, on salary as well as pension and retirement benefits for the referees.  The deal finally came after the Seattle Seahawks’ controversial last-second win over the Green Bay Packers on 24 September, in which a questionable call by a temporary replacement referee turned a Green Bay interception into a game-winning touchdown for Seattle.  FMCS has not disclosed the details of the agreement.

Regional Mediation Training Scheme for employment disputes launched in Cambridge and Manchester

On 21 June 2012 the Department for Business Innovation and Skills (BIS) announced that Consensio, a member of the Civil Mediation Council (CMC), will conduct training in mediation for employees from a group of 24 small to medium sized enterprises (SMEs) in Cambridge and Manchester. BIS has determined that both Manchester and Cambridge have a suitable concentration of SMEs and comparable levels of economic activity against their pre-defined control regions, to support the pilot networks. Continue reading

Regional mediation pilot scheme launched for employment disputes

On 23 January 2012 the Department for Business, Innovation and Skills (BIS) announced a pilot scheme for two regional mediation networks for small and medium-sized enterprises (SMEs). This is the latest step in the reforms to the employment tribunal system. The pilots will operate in Cambridge and Manchester where BIS will fund mediation training for employees from a group of 24 SMEs in each of the pilot areas. A network of trained mediators will be available to offer mediation to other organisations in their respective networks. It is expected that this will help resolve workplace disputes as early as possible before they reach the employment tribunal stage. Continue reading

Government publishes response to consultation on Resolving Workplace Disputes

The Department for Business, Innovation and Skills (BIS) and the then Tribunals Service (now HMCTS) jointly issued a consultation document on 27 January 2011 that set out a series of detailed proposals on how the employment tribunal system should be changed. That consultation closed in April 2011 and the government published its response on 23 November. Continue reading