It’s not over till it’s over

If the claimant and respondent in an employment tribunal case are going to negotiate, the time they are most likely to do it is in the last few days before the hearing.

This is also the time when final preparations for the hearing need to be done. By the last few days before the hearing, you should have agreed a bundle and exchanged witness statements, and you will be about to start familiarising yourself with the bundle and doing your final preparation for the hearing. If the bundle and witness statements aren’t in place by this point, you’re badly behind already and need to work fast.

This creates a dangerous pit-fall. Negotiations tend to take on a momentum. There often comes a point where, although you don’t yet have a deal, both sides are pretty sure that it is only a matter of time and a bit more haggling until they do. It is terribly tempting when that point arrives to put preparation on one side on the assumption that the hearing is not now going to happen.

It’s a good temptation to resist. Negotiations can, and sometimes will, come horribly unstuck at a very late stage on a point that no-one had realised was important until it was raised. In particular – this is a common mistake among representatives – don’t underestimate the importance of the non-financial terms of the settlement. It is easy to sit back with a sigh of relief once a sum of money has been agreed, only to find that you can’t agree on the terms of a reference, for example, or the wording of the confidentiality clause, or the question who is responsible in the event that there is any tax to pay on the settlement.

If you are badly behind in your preparation, try, so far as you are able, not to let the other side get wind of the fact. If they know that you’re now hopelessly ill-prepared for the hearing, it follows that it will be a disaster for you if the negotiations break down. You might as well admit in a game of poker that you’ve got a very weak hand.

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