I am having an increasing number of cases where the Employment Tribunals suggest judicial mediation.
Judicial mediation was originally piloted by the Ministry of Justice between June 2006 and March 2007 in an attempt to achieve savings in time and cost. Reports after the pilot suggested the scheme was a failure. However, from my own experience Tribunals are increasingly offering this service.
Having attended a number of mediations now, I am of the view it is always worth trying.
Judicial mediation is meant to be a way of resolving a dispute between parties without the need to go to a full hearing. An Employment Judge will suggest to the parties early on in proceedings, usually at the first Case Management Discussion, that mediation might be a good way to try to resolve the problem. A common example of its suitability is where the employee has an ongoing employment relationship with the other party in the proceedings. Both parties have to agree to participate in the mediation. If both parties are willing, the Judge will then explain that the mediation is confidential and if unsuccessful cannot be referred to later in proceedings by either party, however unreasonable they may have found each other at the mediation.
At the mediation, a Judge acts as an impartial mediator. If mediation fails, the Employment Judge who conducted the mediation will not be involved any further if it proceeds towards a final hearing. The role of the Judge at the mediation can vary. The judges are instructed not to impose their own views on the nature of any potential agreement. Their role can be very useful as an impartial third party in facilitating settlement. The Judge can assist in focussing parties’ minds on the issues and can at any time order both parties to meet together to clarify any particular points which are causing confusion. This can aid communication as opposed to just taking instructions from your client and then discussing it over the telephone with the other side’s representative, who in turn is also having to go and obtain instructions separately from their client. It is a good opportunity for parties and their representatives to attend so misunderstandings can hopefully be addressed.
The Tribunals offer the service at no additional cost. The costs involved in judicial mediation to the parties are usually a full day’s attendance at the Employment Tribunal where the mediation normally takes place. This can often involve the use of Counsel for the day.
If settlement can be reached, then both parties do not have to incur further legal costs in fighting the claim and the Tribunal does not have to spend more time and money on further Case Management Discussions, not to mention a full hearing and whatever else may follow. The benefit to the Claimant goes further in that there are a wider range of remedies available at mediation than there are at a final hearing. The latter’s main remedy is usually compensation alongside declarations and non-binding recommendations. At mediation I have had Claimants reach agreements on things such as training courses they wanted to attend, full apologies and obtaining working hours they were happy with that had far more benefit than a financial sum being paid. Another benefit can be saving of the working relationship between parties. Of course, these remedies can be reached during the course of the proceedings at any time if the parties agree, but I have found that judicial mediation assists parties to come together, discuss the issues and help clear up any misunderstandings for previous reasons mentioned earlier.
Sometimes resolution is not reached on the day, but occurs not too long afterwards, when both parties have had time to consider the issues raised at the mediation.
On the downside, I have also had cases where Judicial Mediation has failed, on one occasion because one party turned up and offered nothing other than what they were obliged to do by law. This asked the question what was the point of them agreeing to attend mediation when the aim is to try to settle a claim and avoid the time and expense of further proceedings. Again, you can never predict how the mediation will fare and it very much depends on the mind-set and wishes of the parties involved.
Mediation can be a powerful tool in helping resolve workplace disputes, and whilst the Tribunal offers it an no additional cost it is always worth at least attempting to see if resolution can be reached at this early stage.
Submitted by Damian Brooks
