Employment Bill [HL]

moved Amendment No. 14: 14: After Clause 6, insert the following new Clause— ““Mediation (1) Section 7B of the Employment Tribunals Act 1996 (c. 17) (mediation) is amended as follows. (2) In subsection (3), for ““decide matters in the case only with the consent of the parties”” substitute ““not decide matters in the same case””.”” The noble Lord said: I move this amendment, which is in my name and that of my noble friend Lady Wilcox, at the suggestion of the noble Lord, Lord Wedderburn of Charlton, who sadly could not be here today. It is similar to one that he moved towards the end of our proceedings on the first day in Committee, as long ago as 4 February. I hoped that he would be here and that we could have the amendment down in both his name and mine. Both of us have been here for some 30 years and it would have been an unusual combination of names on an amendment. I make that point to illustrate that this amendment is not party-political; it merely makes a simple and basic point about mediation, as we discussed on the previous amendment. The simple point is that one should always remember that mediation is not arbitration or conciliation; it is something different. The important thing about mediation is that the mediator makes it clear that everything that is said to him is off the record, without prejudice, and that he will forget all of it after the mediation is closed, whether or not that mediation has been successful. Therefore it is important that the mediator, more than anyone else and even with the consent of the parties, should be precluded from taking part in later proceedings. As both the noble Lord, Lord Wedderburn, and I understand it, it would be possible under the Industrial Tribunals Act 1996 for a mediator subsequently to be a member of an employment tribunal. As the noble Lord, Lord Wedderburn, made clear on 4 February—I hope that I, too, made it clear—we think that it would be wrong in principle for a mediator ever to act in a judicial or quasi-judicial role in the same case. Therefore it is important that we amend the Act in the way that is suggested by this amendment, to make it clear that a mediator can never act as a member of a tribunal, even with the agreement of the parties. That is why, in my proposed new subsection (2), we substitute the words, "““not decide matters in the same case””." The noble Lord, Lord Wedderburn, felt very strongly about this. I feel very strongly about it and I cannot see why the Government on that occasion resisted the amendment. I hope that they will not resist this amendment and that, even if they cannot accept the wording, they will say that they will bring forward something suitable at Third Reading. It is important that it is made clear that a mediator should not act later as a member of an employment tribunal. I beg to move.