Partners Employment Lawyers Guide to Judicial Mediation

When bringing a claim in the Employment Tribunal, one option available to parties is to pursue judicial mediation, which attempts to secure a mutually agreed resolution instead of proceeding to a final hearing. But what is judicial mediation and how does the process work?  

What is mediation and what are its benefits?

Mediation is a form of alternative dispute resolution in which a neutral third party (the mediator) helps the parties to negotiate a settlement. The parties still have responsibility to reach a solution, with the mediator simply facilitating the process. Should an agreement not be reached, the mediator does not impose a settlement.

Mediation is completely voluntary, meaning it cannot happen if either of the parties refuse to participate. It is also non-binding, meaning that until agreement is reached there is no obligation to enter a settlement, and the process can be terminated at any time. It is intended to be flexible and facilitative, helping the parties consider new approaches to resolving their dispute. It also offers remedies that may not be available from a court, such as an apology or a reference from the employer. The process is completely confidential, and the content of the discussions cannot be referred to in any subsequent proceedings.

There are several advantages to mediation over litigation. It can be very effective as it opens up discussions between the parties, improving the chances of a resolution, and it is far quicker and cheaper than bringing a claim. It also allows the parties more control over their situation, which can be empowering, especially for employees.

What is judicial mediation?

Judicial mediation is a form of mediation offered in the Employment Tribunal to parties who are already in the process of litigation. In judicial mediation, a trained employment judge acts as a mediator. It has all the features discussed above and has a reported success rate of around 70-75%.

How does the judicial mediation process work?

At a preliminary hearing, an employment judge will identify cases which are potentially suitable for judicial mediation and ask the parties whether they are interested in this option. As mediation is a voluntary process, it will only be offered if both parties actively want to participate. Although there are no restrictions on the sort of cases that can be considered for judicial mediation, it is not likely to be available for cases with full hearings scheduled to last fewer than three days. Discrimination complaints and those where an employee is still employed may be particularly suitable, whereas cases with multiple respondents may be less so.

If the case is suitable for judicial mediation, there will be a case management hearing to confirm both parties are still interested in pursuing this option and make appropriate arrangements for the mediation itself, including setting the date and agreeing relevant issues. The judge will also direct what documents are required for the mediation, such as position statements.

Judicial mediation meetings are generally scheduled to last one day. A specially trained employment judge will be appointed for the mediation. Decision-makers with authority to make decisions need to be at the mediation. Should the mediation take place and be successful, the settlement will include a withdrawal and dismissal of the tribunal proceedings. Given mediation is a completely voluntary process, it is open to either party to withdraw from the mediation with potentially limited consequences.

At the mediation

• The claimant and a representative from the respondent employer are required to attend, and the representative from the respondent must have authority to agree a settlement.
• The parties may be accompanied by their legal representatives. If the parties are not legally represented, it may be helpful to be accompanied by a friend.
• At the start of the session, both parties appear before the judge before going into separate rooms. The judge will identify the key issues and develop settlement negotiations, facilitating communications between the parties.
• The judge will not make decisions for the parties, impose solutions, give advice or hear evidence. However, if requested, and subject to mutual agreement, the judge may give an indication as to the strength of a particular point. The judge will help the parties reach their own solution by managing the process in a fair and constructive manner, making sure that they understand what is going on and helping them to focus on areas of agreement and common interest.
• If a settlement is achieved, written terms are agreed, and Acas may be contacted to incorporate the terms into a binding COT3. Alternatively, the parties may enter into a settlement agreement.

As an experienced employment practitioner with over 20 years of experience, Hina Belitz is able to provide detailed advice on employment litigation and judicial mediation. Please do contact Hina and her team for further advice at the details below.