Employment Bill [HL]

moved Amendment No. 17: 17: Clause 5, page 4, line 21, at end insert— ““( ) In subsection (2), for paragraphs (a) and (b) there are substituted the words ““in all cases””.”” ( ) After subsection (2) there is inserted— ““(2ZA) No proceedings to which this section relates shall be heard by the tribunal until the conciliation officer has certified in writing that— (a) he has endeavoured to promote a settlement of the proceedings in accordance with subsection (2); (b) the parties to the dispute have, in his opinion, cooperated with the conciliation procedure or have each confirmed that they have participated in an independent mediation or conciliation procedure; and (c) no settlement has been reached.”””” The noble Lord said: I should declare an interest not only as a partner in the national commercial law firm Beachcroft LLP, but—like my noble friend Lord Henley, as he mentioned at the previous sitting—as a fully accredited CEDR mediator. Therefore, not only do I practise mediation but I am a very strong believer in the whole process. CEDR—the Centre for Effective Dispute Resolution—is widely recognised as the leader in Europe in the field of mediation and alternative dispute resolution. Its mission is quite simple—to encourage, develop and implement mediation and other cost-effective dispute resolution and similar prevention techniques in commercial or public sector disputes and civil litigation. Its networks and strong track record of excellence and innovation in this field enable it often to be a practical and thought leader in the ADR field. I came to mediation with a number of serious drawbacks to qualifying and passing the relevant examinations. First, I was a lawyer. As one swiftly recognises in mediation, it is very important not to reach any judgment or conclusion; it is for the parties themselves to settle a dispute on terms that they agree rather than ones imposed on them. However, slowly but surely over the period of training, I managed to get rid of those impulsive tendencies, and I duly qualified. Since then, I have increasingly recognised the importance of mediation and have been following very carefully over the past few years how mediation has developed. I recall that the noble and learned Lord, Lord Woolf, felt strongly that in civil litigation there should be every encouragement to people to utilise mediation as a method of solving their disputes rather than resort to litigation. Of course, litigation is costly not only to the parties involved but to the Government, who have to set up the court structure to meet demand that is rising, particularly at present. In the amendment, I seek to read across into employment tribunals and emphasise again the importance of mediation. When attempted, mediation often sadly comes too late in the process. In some states in America, it is a requirement that the mediation process be exhausted before the parties are allowed to take advantage of the processes in courts and tribunals. The essence of mediation is that it: first, involves a neutral third party to facilitate negotiations; secondly, is quick and inexpensive, without prejudice and confidential; thirdly, enables the parties to devise solutions that are not possible in an adjudicative process such as litigation, tribunal proceedings and arbitration; and fourthly, involves the parties who either have or represent parties who have sufficient authority to settle. A lot will depend on the skill of the mediator, of course. It is important for the mediator to have had specific training and experience. Over the years, particularly when I had the honour to be involved as Secretary of State for Employment, I have had the highest possible regard for ACAS. We could suddenly move into a debate about the difference between conciliation and mediation, which would be interesting, but I am not too sure that it would be helpful. My main purpose is to encourage alternative dispute resolution. The amendment would mean that, before the parties could have access to the tribunal process, they would have to go through mediation. I make no apology for that because, as soon as you get close to proceedings, the issues often escalate in seriousness, and suddenly it becomes difficult to try to resolve them. Often there are outside forces involved that come between the parties, and the whole thing gets to such a stage that it becomes virtually impossible for ACAS or an independent mediator, whichever it is, to bring things to a successful conclusion. No one ever benefits from an extended process. The great advantage of mediation is that it speeds up the process of resolving a problem. It is particularly important in employment tribunals, because one hopes that the parties will have a continuing relationship. It does not necessarily mean that the relationship has to end. The great advantage of alternative dispute resolution is to get the parties together to solve their differences and then to move on, without ever having had to go before a tribunal. I have probably outlined enough the purpose behind the amendment. It perhaps goes reasonably far in the penalty involved and I would be open to persuasion about that, which is why I am testing opinions at this stage in Committee with a view to returning to the issue on Report if possible. It may well be that ACAS should be given a power more specifically to mediate, because there are some highly qualified people within ACAS who could mediate as well as conciliate. Of course, conciliation is what ACAS is expert at but the purpose of my amendment is to highlight the role of mediation, which I believe has an increasing part to play as we move towards a more effective system of alternative dispute resolution. I beg to move.