So said Queen Elizabeth I in a very early glimpse into English Civil Court proceedings.  Should we therefore be heartened by a possible sign of things to come in the modern employment world, thanks to Lord Justice Briggs earlier this week?

Addressing the Chartered Institute of Arbitrators on 26 September, Briggs LJ told of his vision of a not-far distant world of online Civil Courts where mediation for sub-£25,000 cases was the new “cultural norm” and actual litigation (through costs, stress and delay) even more of a last resort than it already is.

Where the Civil Courts go the Employment Tribunals may follow, especially if it involves saving any money.  Clearly the vast majority of Tribunal claims are for less than £25,000 and the introduction of fees is already recognised as constituting a deterrent to the bringing of claims in that forum.  The last Annual Report of the Tribunal system also spoke of moving things online, a prospect it is impossible to greet with anything but utter trepidation.

So in principle, advocates of mediation should be knocking on open doors where employment disputes are concerned.  However, take-up for the Tribunal’s own judicial mediation scheme has been relatively limited and Acas claim only a 15% success rate in relation to its pre-claim conciliation process (though that is conciliation rather than mediation – “do you want to settle?” rather than “can I help you settle?”).  Why might that be?  Why might a process aimed at a cheap, swift and discreet resolution in terms acceptable to both parties not be snapped up straight away?

A number of the negative reader comments on about Brigg LJ’s perfect world for the Civil Courts would have resonance also in the Employment Tribunal.  For example:

“Mediation is useful where the question is “how much?”.  It is usually a waste of time in all-or-nothing cases…in such cases one party is wrong and needs to accept that”.

There are of course cases where the public win is genuinely paramount, but they are rare.  We find that most parties who say that they won’t settle an employment dispute are doing so in order to get a better settlement.  The Briggs model does not make mediation mandatory, but if that culture is to be developed quickly, then it is going to need some teeth.  It is not hard to expect that a party which unreasonably refuses to mediate could be exposed to a costs claim, and then it would be for that party to explain why it was so important that somebody had to be proved wrong.  “It is not enough to succeed” said Gore Vidal, “others must fail”.  An uplifting sentiment indeed, but there must be some doubt about how far it would get him on the costs front.

“If you mediate your way to a compromise that simply means that the party in the right has been pressured to take less than they are due”

Well yes, but only because it suited him to do so.  Is an employee who agrees £10,000 compensation with £1,000 costs better or worse off than one who fights successfully and after 6 months of stress and distraction is awarded £20,000 with £15,000 costs?  And if he can wangle a decent reference and maybe some outplacement counselling out of the bargain (neither available from the Employment Tribunal), who is to say that he has lost out?  This is all good cold commercial sense, but it may be that this emotional response would be the biggest obstacle to mediation as a default setting.  After all, was it not because people did not want to be seen to be compromising that they changed the name to “settlement” agreements?

“Unscrupulous defendants often use requests for mediation as a technique to delay cases and drive up costs…although mediation can be helpful, it costs money and takes time and is manna from heaven for someone who is determined not to pay”

This is clearly right.  Employees do abuse the scope for mediation already.  But so do employers, each taking the other for an extended ride to learn more about their case, feel out the extent of their resilience and rack up their costs.  The system is not now, and in Briggs-world will still not be, perfect.  But there is no escaping that some 80-85% of commercial employment mediations settle on or around the day with the Tribunal’s judicial mediation scheme (per the last Annual Report) at 72%.

It has long been said that the mark of a good settlement is that it makes both parties equally unhappy.  That doesn’t sound like much of an aspiration for our judicial system, but it is the basis on which mediation works and, leaving aside odd cases of precedent and principle, it may be one to which we should now begin to reconcile ourselves.