• Differences between judicial mediation and a preliminary hearing
• What happens after a settlement?
• Using private mediation for a dispute

What is judicial mediation?

Judicial mediation involves bringing the parties in the employment dispute together for mediation at a private preliminary hearing in front of a trained employment judge. This happens either before a preliminary hearing takes place (if applicable), or before the final hearing. The judge’s job is to remain neutral and to assist the parties in resolving their dispute. Judicial mediation is free and aims to resolve an employment dispute early. It’s important to understand that Her Majesty’s Courts and Tribunals aims to have employment tribunal matters finished within 26 weeks of a claim being brought. In reality, it takes between 26 to 52 weeks for matters to close, due to court availability. Judicial mediation can cut this period of time down significantly, as can coming to an early settlement.

However, judicial mediation isn’t the only opportunity the two parties have to settle. Clients will have been required to go through ACAS conciliation before going to an employment tribunal. ACAS is an independent public body that provides advice on things such as employee rights.

And after ACAS conciliation, there is normally some form of settlement discussion, or a settlement offer that takes place prior to judicial mediation. It’s only after all these options have been exhausted that judicial mediation takes place.

Employment disputes can be emotionally charged, but it’s important not to view mediation in any form as being ‘namby-pamby’. Mediation is a process aimed at reducing costs, stress, encourages open discussion, and is looked upon favourably by judges in the employment tribunal. In fact, failing to take up an offer to resolve an employment dispute without the court’s intervention will, more often than not, be looked upon negatively.

What employment disputes are suitable for judicial mediation?

There is some guidance in the public domain on this, in particular Presidential Guidance – General Case Management. This document outlines that equal pay claims are unlikely to be a suitable case for judicial mediation. However, judicial mediation can be used for many other employment disputes. Without knowing the details of your case, it’s difficult for us to comment on how suitable judicial mediation is for you. As a result, our solicitors recommend that you should seek trusted legal advice when you have an employment dispute so you can take the best course of action.

What are the pros and cons of judicial mediation?

Pros of Judicial Mediation

1. Cheaper – mediation is very cost-effective and, if you can achieve a mediated resolution, this will be substantially cheaper than progressing through a full employment tribunal claim. A recent study showed that 76% of cases involving successful mediation experienced cost savings of over £25,000.
2. Quicker process – judicial mediation will usually be a quicker process, especially taking into account the difficulties currently faced by the employment tribunal dealing with the sheer number of employment claims. A multi-day discrimination matter could be waiting nearly a year for a listing, whereas, if the parties have agreed to judicial mediation, this can take place within a matter of months. Almost two thirds of all cases that involve mediation reach a successful settlement on the first day of mediation.
3. Confidentiality – mediation can keep the details of a case out of the public eye, which is useful for companies and individuals concerned about how litigation will affect their reputations.

Cons of Judicial Mediation

1. Cost savings – the perceived benefits can sometimes be misleading. Although the costs of mediation are lower than that of litigation, it can be a waste of time and money if the judicial mediation is unsuccessful.
2. Confidentiality – some may see the confidentiality of the process as a disadvantage, especially if the claimant wants bad publicity for the defendant.
3. No closure – by avoiding a final judgement, some people don’t feel the same sense of finality as if they were to receive a judgement from a judge. However, this is not to say that you wouldn’t have achieved a different outcome at the employment tribunal by way of any financial compensation or similar.

What are the differences between judicial mediation and a preliminary hearing?

While judicial mediation seeks to bring matters to an amicable close, preliminary hearings are intended to clarify questions that an employment judge may have. Preliminary hearings are essentially ‘gearing up’ both sides for a final hearing by eking out any last relevant details that may be of use to the judge.

Judicial mediation takes place before a preliminary hearing, as it’s deemed if the two sides can’t come to an agreement through mediation, the last resort is to achieve a judgement from a judge.

How long does judicial mediation last?

Judicial mediation is overseen by a specifically-trained employment judge and typically lasts for one day. For more complex employment disputes, mediation can span two days.

65% of employment judicial mediation cases settle on the day the mediation takes place and, according to government statistics, most cases that are not settled in this way go on to settle out of court before further hearings take place in the employment tribunal. If the mediation is successful, your employment law solicitor will ensure the settlement includes withdrawal and dismissal of the employment tribunal case.

In some cases, the employment tribunal may reactivate ACAS conciliation during or after the judicial mediation.

What happens at the judicial mediation meeting?

If you are the person who has bought the claim you are called the claimant. The person the claim is made against is referred to as the respondent. Both the claimant and the respondent (or their respective representatives) will need to attend on the day of mediation. Any employment dispute representatives must have prior written authority to agree to a settlement on behalf of the claimant or respondent.

Usually, the parties are accompanied by their employment law solicitors. If a party does not have an employment law solicitor, then the guidance published by The Law Society suggests that the party should be allowed to bring a friend or colleague.

The employment tribunal judge will typically meet with both parties at the start of the mediation to develop settlement negotiations. After the judge has met both parties, they will proceed to separate employment tribunal rooms with their employment disputes solicitors.

What happens if the employment dispute is settled?

When a settlement is achieved, terms are agreed and put in writing. ACAS can be asked to incorporate the terms into a legally binding COT3 agreement.
A COT3 agreement records the terms of settlement of an employment tribunal claim (or potential claim) which has been agreed between you and your employer with the assistance of a conciliation officer employed by ACAS.

If a COT3 agreement is not suitable, then a full settlement agreement or termination agreement will need to be drafted by your employment law solicitor. Our employment law solicitors will typically prepare a list of terms that will be included in any settlement agreement or put forward for the COT3.

What happens if judicial mediation fails?

If mediation doesn’t succeed, the employment tribunal process resumes. Judicial mediation is a private process, which means none of what is said during mediation can be used in the employment case, nor will the judge who oversaw the mediation be involved further.

In some cases, judicial mediation is to reveal the parties’ respective positions rather than focusing on the employment dispute resolution.

Can I use private mediation to resolve my employment dispute?

Private mediation is always an option, but it can be an unnecessary expense. There are five considerations that your employment law solicitor will advise you on here. They are:

• Restrictions on availability
• Structure and venue
• Flexibility
• Cost
• Range of mediators

Remember that judicial employment mediation cannot be used for equal pay claims, but this restriction does not apply to private mediation. The only limitation on private mediation is that both parties to the employment dispute must agree and pay the costs of private mediation.

Both private mediation and judicial mediation follow similar structures and have the same preparation requirements; for example, what documents will be included. The venues are slightly different as judicial mediation takes place at the employment tribunal, and private mediation will take place at a separate agreed venue.

During private mediation, both parties have the flexibility to agree on a mutually convenient date rather than having one set by the employment tribunal. One advantage of using private mediation is you’re not restricted by employment tribunal working hours. Private employment mediation can take place at any time of day, or be extended from the day into the evening to reach a resolution.

Private mediation must be paid by the parties, while judicial mediation is free. The respondent usually pays the cost of private mediation, but in some cases, your employment law solicitor will agree to share them.

The advantage of having a private mediation is that the parties have the freedom to select a mediator who is qualified to deal with their particular employment dispute. In judicial employment mediation, there is no such selection process. The employment tribunal will appoint a mediator for the parties. Some employment judges might not be as experienced as private mediators at focusing on a resolution rather than on the merits of the employment claim.