10 August 2010
Solicitors involved in Employment Tribunal proceedings whether acting for employees or employers.
Advisers dealing with a mediation have a different role to play than when they are conducting adversarial advocacy before the Employment Tribunal.
This practice note offers some guidance on how judicial mediation works in the Employment Tribunal and considers the potential benefits for claimants and respondents.
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Employment Tribunals offer a Judicial Mediation scheme which started as a pilot in 2006, and is now available throughout England and Wales. Judicial mediation is entirely voluntary and provides parties to an Employment Tribunal claim with a confidential, alternative settlement option that tries to avoid the need for a full merits hearing.
The judicial mediation takes place in the Employment Tribunal but is held in private.
A trained employment judge will act as the impartial mediator at the judicial mediation to try to help the parties to resolve their dispute.
Nothing that happens or is said at the judicial mediation (including any documents prepared for the mediation) can be referred to in any subsequent tribunal hearings. If the mediation fails to resolve the case the employment judge is prevented from being involved in any subsequent hearing on the case.
There is no discussion of the merits of the case in a judicial mediation. The role of the mediating employment judge is to help to identify the areas of dispute and act as a catalyst to enable the parties to resolve the difficulties for themselves.
The distinction between judicial mediation in the Employment Tribunal and the civil courts is that parties in the Employment Tribunal are free to refuse the offer and/or to withdraw from the process at any time.
At present, there are no costs in terms of the court service and each party will bear their own costs associated with the judicial mediation.
There are specific criteria which identify cases as suitable for judicial mediation. The principal criteria for these purposes are that:
Early mediation can prevent either party becoming too entrenched and reduce costs. It can be particularly useful where there is an ongoing employment relationship such as where a claimant has raised allegations of workplace discrimination.
There does need to be a willingness on the part of all the parties to make some form of compromise. It will not work if the respondent simply wants the claimant to withdraw his/her claim or is only prepared to make the claimant a nuisance payment.
Judicial mediation is available in all regions throughout England and Wales and can be used to settle most claims, subject to the application of the criteria mentioned above.
Potentially suitable cases are identified as part of the normal tribunal process by an employment judge normally at a case management discussion, during which the employment judge will advise the parties of the possibility of being offered judicial mediation and they will consider whether they wish to proceed with that option.
If both parties have agreed to the case proceeding to judicial mediation, the regional employment judge will review the file and decide whether to make an offer of judicial mediation, depending upon resource constraints and the suitability of the issues for mediation. If an offer cannot be made the parties will be informed.
If an offer is made, a case management discussion will be held (usually by telephone) to consider and make appropriate arrangements for the conduct of the judicial mediation.
Representatives are encouraged to consider, in advance of the case management discussion, whether any of the following might assist the judicial mediation:
These matters should be raised with the regional employment judge during the course of the case management discussion explaining why it is considered that they are potentially useful.
The regional employment judge can then consider the point (with input from or on behalf of the other party) and make appropriate directions.
The matters that will be dealt with at the case management discussion will include setting the time of the mediation meeting, agreeing the issues that are relevant to the mediation (which might be different from those that would fall to be determined at a tribunal hearing).
Any consequential variations to existing orders such as the exchange of witness statements will also be agreed.
The regional employment judge will direct what (if any) documents are required and may make other appropriate directions such as are described above.
Generally a mediation meeting will be scheduled to last one day (or occasionally two). The mediation meeting will take place under the rules governing case management discussions.
The claimant and a representative(s) from the respondent are required to attend the meeting. The respondent's representative will need to have full decision-making authority to offer and agree settlement terms.
Parties can be accompanied to the Judicial Mediation by their legal representatives. To save costs, a claimant may not be legally accompanied but it may assist the mediation process if they are at least accompanied by a friend.
Normally, at the start of the judicial mediation, both parties appear jointly before the mediating employment judge.
Both parties will then go to separate tribunal rooms and the employment judge will develop the settlement negotiations adopting a facilitative technique: for example, by taking views from each party separately and then relaying the information to the other side.
The mediating employment judge will assess what the parties are saying and identify the key issues. They will manage each stage of the process to enable each party to represent their views whilst keeping the mediation moving along.
If a settlement is achieved the terms are agreed in writing and ACAS may be involved in incorporating the terms into a legally binding COT3 Form.
In appropriate cases the mediating employment judge might contact ACAS by telephone while the parties are present (subject to their agreement) so as to achieve a conciliated settlement.
Alternatively, the parties may finalise the settlement terms by entering into a compromise agreement. In certain cases, it may be helpful to bring to the mediation a checklist with a list of potential terms to be included in any compromise agreement or COT3 Form.
The fact that both parties have made a positive decision to attend the mediation indicates a willingness to engage in a process of looking for a potential way to resolve the dispute.
It is also essential for the lawyers engaged in the mediation process to adopt a positive mindset about during the mediation process, the focus being upon compromise and agreement, and to leave behind the tactics of adversarial advocacy.
The skills and adeptness of the mediating employment judge will have a big impact on the success of the mediation meeting.
A successful mediator will assist the parties to step back and to consider the claim from both parties' perspectives.
It is important for the parties to think beforehand about what is important and what is not to them. This will help the mediating employment judge to understand what actually divides the parties.
Judicial mediation is an alternative to an Employment Tribunal hearing. It is not an alternative to ACAS conciliation and its independent statutory duty to conciliate after a claim has been lodged, which continues in the same way as normal.
Judicial mediation could potentially save time and costs because a full merits hearing can be avoided.
The employment judge is neutral and has no stake in the outcome of the process.
There is no discussion of the facts of the case in a public court. This may be particularly important when there is an ongoing employment relationship and/or where the parties feel that a public disclosure of issues could be damaging to their business and/or careers.
It provides a claimant with an opportunity to state their case in a court forum before a representative from the respondent and an employment judge.
There are non-financial remedies available in a judicial mediation. This might include providing the claimant with an apology or a reference, outsourcing assistance or training to help the claimant find new employment.
From a respondent's perspective resolving matters via a judicial mediation may enable a satisfactory commercial outcome to be achieved without appearing to have conceded their position.
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The Law Society thanks the Employment Law Committee for its assistance with this practice note.