Judicial meditation at work

What is Judicial Mediation?

In 2006, the Judicial mediation scheme was introduced. It was intended as a less costly and faster alternative to a full Employment Tribunal hearing and is voluntary, non-binding (although see below) and confidential.

When it was introduced, judicial mediation was free but as of 2013, there has been a £600 fee, which is payable by the respondent to a claim (usually the employer).

The cases considered suitable for judicial mediation are often those which are thought likely to last three or more days should they come to trial, and which revolve around some form of discrimination. However, equal pay claims are also considered appropriate for mediation.

Judicial mediation may also be particularly suitable if the claimant (usually the employee) remains an employee of the respondent.

Why opt for judicial mediation?

There are several reasons why both employers and employees would choose the route of judicial mediation rather than proceed to a full Employment Tribunal hearing.

• It avoids a full merits hearing.

• It could potentially save both valuable time and costs.

• The employment judge is neutral and has no stake in the outcome of the process.

• Disclosure of delicate or personal issues could be damaging to both careers and businesses and this can be avoided because facts that are discussed in the mediation process are not disclosed in a public court.

• The claimant gets the chance to put their case forward in front of a representative of the respondent and an employment judge.

• In contrast to the Employment Tribunal, a judicial mediation has the option of non-financial remedies; these could include an apology to the claimant, a reference for future employers, and guidance or training that can assist the claimant should they need to find new employment.

• The respondent may take the view that a resolution that is achieved through judicial mediation may give them a satisfactory commercial outcome without them conceding their position.

• If a satisfactory outcome can’t be achieved, then whatever is discussed at a judicial mediation can’t be brought up or discussed at a future Tribunal hearing.

What is the Judicial Mediation Process?

In order for judicial mediation to take place, both parties must agree to it. The employment judge will identify whether a case is suitable as part of the normal tribunal process.

This normally takes place at a preliminary hearing and the judge will advise the parties about the chances that they will be offered judicial mediation.

When both parties have agreed to judicial mediation and that agreement has been ratified by a Regional Employment Judge, an invitation will be extended to both parties and their legal representatives to attend an open day session at their nearest hearing centre.

The parties also need to reach an agreement on the issues that will be covered by the judicial mediation, the people who will be attending and any requirements that the parties have that will affect the way that the mediation will be conducted.

What happens during the Judicial Mediation process?

Preliminaries

Normally, the mediator will introduce him/herself to the parties and show them to their private rooms. It is up to the mediator to decide on appropriate seating arrangements for the opening session.

The opening phase

When everyone is present, the mediator will open the proceedings. This phase will build trust between the parties and the mediator. It is also an opportunity to establish the ground rules for the mediation process as a whole.

Mediator’s opening statement

This will usually outline the process and the stages it will include. It will explain what the mediator does and what is expected of the parties. The overall tone will be positive and encouraging.

The key issues that need to be tackled during the mediation process will usually be identified from the parties’ opening statements and documentation, which will take the form of a brief presentation giving their take on the matters in dispute and highlighting issues that they feel are of particular concern.

Documentation will include summaries that the parties have prepared for the mediator, as well as any documents to be considered during the mediation process.

Once the mediator has received this information, they will prepare a list of issues that need to be resolved. They can then prioritise the issues and from that, build an agenda that can address the points of conflict.

Exploration phase

This phase concentrates on private sessions between the mediator and each party. These sessions are on a confidential basis. The mediator will not disclose any information without the express consent of the party concerned.

The main point of this phase is to ensure that the mediator has a good grasp of each party’s concerns, needs and interests.

At first, the sessions may be an emotional experience, since the parties now have an opportunity to express their feelings about the dispute. This can be a valuable safety valve and will mean that the joint sessions taking place later will be a lot less confrontational.

The exploratory sessions can help the mediator to conduct discussions about the strengths and weaknesses of the party’s case. It can also enable the parties to consider their options regarding settlement of the dispute.

Negotiation phase

This takes place once the exploration phase has finished. During this part of the process, the parties will start to make offers and counter-offers.

The mediator will probably assist the parties to look at the problem in a number of different ways and encourage them to consider creative settlement solutions.

Settlement phase

If all goes well, the negotiations will be successful and an agreement will be reached. Once this has happened, the mediator will move towards formalising the settlement.

This is not as simple as it sounds; a formal agreement may take several hours to draft and confirm. During the drafting process, the mediator will most likely be involved in ensuring that all the issues connected with the dispute have been covered. They will also look at the terms of the settlement to ensure that it is clear and unambiguous.

Once the terms of the settlement have been agreed in writing, they are incorporated into a legally binding form known as a COT3. ACAS may well be involved in this process.