Employment disputes can arise for a number of reasons, can be costly to resolve and extremely stressful for all parties involved. Most people know what employment tribunals are, so when our employment law solicitors meet clients for the first time, our top priority is usually to advise on matters concerning employment tribunals as this is an area that people know about, and causes most people anxiety. What many people don’t know, however, is that employment disputes can be cut short through judicial mediation, which is a form of alternative dispute resolution.
An employment tribunal is not just one all-encompassing event that covers the entire employment dispute. Instead, it is split into a series of several hearings overseen by a judge, the first hearing being the ‘preliminary hearing’. During this early stage, the employment tribunal judge will identify cases that are suitable for judicial mediation and ask the parties’ employment law solicitors if their clients are interested in this option. Clients can become confused at this stage as there will be talk of judicial mediation and judicial assessment. These are not one and the same and our employment law solicitors in Brighton and Hove will advise you on the differences if required.
Judicial mediation is free and is overseen by an employment judge with the aim of resolving an employment dispute earlier than it would have been by going through the entire employment tribunal process. Clients will have been required to go through ACAS conciliation before going to employment tribunal, but again, judicial mediation is a different (but similar) process that our employment law solicitors can guide you through.
Employment disputes can be emotionally charged, and it is important not to view mediation in any form as being ‘namby-pamby’ as it is a process aimed at reducing costs and stress, encourages open discussion to resolve issues, and perhaps most importantly of all, is looked upon favourably by judges if you have offered mediation or have engaged properly in the process.
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, published in 2014 which advises that equal pay claims are likely unsuitable for judicial mediation, but that it could be used for all other employment disputes. Our employment law solicitors can advise whether judicial mediation is suitable for any type of employment dispute you may have.
What happens at the employment dispute preliminary hearing?
Clients that use our employment law solicitors in Brighton Hove will often have concerns and questions about mediation. Our employment law solicitors will advise clients about the need for a case management discussion during the preliminary hearing. Preliminary hearings and case management discussions usually take place over the phone telephone and aim to consider the claim before planning for judicial mediation.
At the case management discussion your employment solicitor will agree time of the mediation and what the relevant issues are.
The case management discussions are managed by a regional employment judge who will direct what documents and evidence are required.
How long does judicial mediation last?
Judicial mediation is overseen by a specifically-trained employment judge and typically lasts for at least one day. For more complex employment disputes, they can span 2 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 a withdrawal and dismissal of the employment tribunal case.
In some cases, the employment tribunal may reactivate ACAS conciliation during or after the judicial mediation.
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 the judicial mediation is to reveal the parties’ respective positions rather than focusing on the employment dispute resolution.
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 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 The Law Society suggests that the party should be allowed to bring a friend or colleague.
The employment tribunal judge will normally 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.
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 normally draft a list of terms that will be included in any settlement agreement or put forward for the COT3.
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 5 considerations that your employment law solicitor will advise you on here. They are:
- Restrictions on availability
- Structure and venue
- 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 restriction 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 a mutually convenient date rather than having one set by the employment tribunal. One disadvantage for judicial mediation is the restriction around employment tribunal working hours. Parties may have to attend during the day, even when an evening mediation might be more suitable and have less impact on both parties. Private employment mediation can take place either during the day or in the evening, or be extended from the day into the evening in order to reach a resolution.
Judicial employment mediation runs the risk of both parties running out of time or worse still, losing the momentum built up during the day, before a resolution is reached. Sometimes, during any delays, the parties are given an opportunity to have second thoughts about the settlement reached.
Private mediation must be paid by the parties, while judicial mediation is free. The cost of private mediation is normally paid by the respondent, 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 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 resolution rather than on the merits of the employment claim.
Our employment law solicitors in Brighton and Hove deal with employment disputes for both employers and employees and have valuable experience in resolving employment disputes through employment tribunal or alternative dispute resolution. If you need an employment law solicitor in Brighton and Hove then contact our employment disputes team now on (01273) 726951, or click here to navigate to our contact us page.