If you have a claim before the Employment Tribunal, you might have been asked whether you would agree to the matter being dealt with by way of Judicial Mediation. This process is a type of alternative dispute resolution and can be a good way for some clients to bring their claim to a conclusion without having to go through a Final Hearing at the Employment Tribunal.
What Is Judicial Mediation At The Employment Tribunal?
Judicial Mediation is a formal process where an Employment Judge acts as a mediator between the parties. Essentially, the idea is that both parties submit a formal document setting out their objectives in terms of agreed actions and compensation. In some areas this is called a “Position Statement” in others a “Statement of Expectations”. The parties then undertake negotiations through the Employment Judge to see if the matter can be concluded in this way.
It is not an Employment Tribunal hearing, but the parties are required to attend the mediation fully prepared to engage in the process. Any final agreed outcome between the parties is binding upon both and can be enforced.
Most Judicial Mediations take place remotely by telephone or video. In certain circumstances, the Employment Tribunal may agree to an attended, face to face mediation but these are becoming increasingly rare.
In some specific Employment Tribunal areas, consideration of Judicial Mediation is compulsory. However, in most areas, this is an entirely voluntary process. Neither party to an Employment Tribunal can be required to mediate. If one party refuses Judicial Mediation, then it cannot take place.
What Sort Of Employment Tribunal Claims Are Suitable For Judicial Mediation?
Recently, given the backlog of Employment Tribunal cases, nearly all claims are considered suitable for Judicial Mediation. Certainly, where there is a Preliminary Hearing, the parties will be asked if Judicial Mediation is something they would be willing to agree to. Also, if a hearing is listed for three days or more, parties are often asked by the Employment Tribunal whether they would be willing to consider Judicial Mediation.
Claims for discrimination and equal pay are considered particularly suitable for Judicial Meditation. This is especially so if there is an ongoing relationship between the employer and employee and the employment contract has not ended.
What Are The Benefits Of Judicial Mediation At The Employment Tribunal?
Given the voluntary nature of Judicial Mediation, if parties have agreed to enter into the process, it is likely a settlement will be achieved.
Judicial Mediation will usually be a quicker process – especially taking into account the difficulties currently faced by the Employment Tribunal dealing with their backlog of claims. A multi-day discrimination matter could be waiting over a year for a listing, whereas, if the parties have agreed to Judicial Mediation, this can take place within a few months.
Although all parties are required to attend (often virtually), and an Employment Judge acts as a mediator, this is not a process where evidence is required or where there is a winner or loser. The idea is to achieve a mediated resolution of the dispute. Where there is an ongoing employment relationship, rebuilding that relationship after a contested Employment Tribunal hearing can be incredibly difficult. Therefore, if the Claimant is still employed Judicial Mediation can be a sensible way forward and will do less long-term damage to the employment relationship than a fully contested hearing.
Unlike Employment Tribunal hearings, Judicial Mediation is private and the public cannot attend (physically or remotely).
It follows from the above that mediation is very cost effective and, if you are able to achieve a mediated resolution, this will be substantially cheaper than progressing through a full Employment Tribunal claim.
In addition, the Employment Tribunal are restricted as to what they can and cannot award at a Final Hearing. However, in Judicial Mediation, it is common that mediated resolutions include agreements as to Employer References, changes to terms and conditions of employment etc which would not (and sometimes could not) be included in an Employment Tribunal Judgment.
By way of example, a recent client who was disabled and wanted a specific commitment from her employer to assist her with reasonable adjustments at work. In a disability discrimination claim the Employment Tribunal can make a declaration or recommendation within its Judgment. However, the hearing was nearly a year away and the client wanted help as soon as possible. In the event, as Judicial Mediation the mediated settlement went much further than an Employment Tribunal judgment could in that a specific plan was agreed and committed to by my client’s employer. This was very important to my client but would not have been possible at the Employment Tribunal. Also, because the Judicial Mediation was listed so quickly, my client’s concerns were dealt with and her case resolved nearly a year before the Employment Tribunal Final Hearing.
If you agree to Judicial Mediation and it is unsuccessful (meaning you can’t agree a resolution with the opposing party), you can still continue with your Employment Tribunal claim. The only way your Employment Tribunal claim would be brought to an end is if there was a mediated settlement to your dispute. Also, any matters discussed, or concessions made, at the Judicial Mediation cannot be referred to in the open proceedings.
What Are The Disadvantages Of Judicial Mediation At The Employment Tribunal?
Some clients report that as this is a different type of process (without any witnesses going into the witness box or any final Employment Tribunal Judgement), they are sometimes unhappy with how their litigation was brought to a close. This is not to say that they have not achieved what they would have achieved at the Employment Tribunal by way of any financial compensation or similar. Only that they have not felt the sense of closure in the same way as if the matter been litigated to a Final Hearing.
Also, where a resolution has not been reached, this may have resulted in any legal fees incurred through the process adding to the overall costs of the claim (but please see below).
Do I Need A Solicitor For Judicial Mediation At The Employment Tribunal?
The short answer is no. Just as with an Employment Tribunal hearing, you can represent yourself.
However, we would suggest that even if you decide not to have a solicitor with you at the Judicial Mediation itself, you should get some legal help to value your claim and help you prepare your statement with your objectives. You want to make sure you are not significantly over valuing your claim which might prevent settlement or (even worse) under valuing your claim which would mean getting much less than your claim could be worth.
Lincs Law Employment Solicitors Can Help You
If you have been asked to consider Judicial Mediation, call us on 01522 440512 for a free consultation about your situation. Alternatively, for more information about Employment Tribunal claims, please visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Sally Hubbard, Managing Director
Specialist Employment Solicitor
Lincs Law Employment Solicitors