With organisations and claimants often waiting months and years for an outcome at an employment tribunal, judicial mediation could help both parties reach a settlement much sooner than they would if their case progresses to a final hearing. Alan Lewis highlights some of the benefits.
As many of us who work in the employment tribunal arena know, the current delays are significant. At last count, there was a backlog of some 51,000 cases.
One of the cases I am currently involved in began life in July 2020 and has been listed for a four-day final hearing in September 2022. The delay here, as with most listings in the employment tribunal, is simply down to a lack of tribunal resources, rather than because there were inconvenient dates for the parties or other factors.
Without doubt, the impact of the Covid-19 pandemic has hindered the process, but much of that damage has been mitigated by the successful implementation of video hearings.
There are many reasons why delays of this kind are most unsatisfactory, including cost, witnesses’ memories fading when facing cross-examination, witnesses having left the employment of the respondent company and therefore being difficult to contact, parties being unable to experience early closure of the issues and unfair denial/delay of justice.
In light of the above, it has become common practice in my experience at preliminary hearings for employment judges to encourage the parties to consider carefully the option of judicial mediation. Mediation can only take place if both parties agree to it.
What happens at mediation?
An employment judge presides over the mediation, usually listed for one day. The judge explains the process and a few “ground rules” at the outset. After that the judge holds separate meetings with the individual parties to find out what they want as an agreed outcome, and alternates between the parties in an attempt to find common ground that leads to a binding settlement encapsulated in a written Acas COT3 form or formal settlement agreement.
Here are 10 reasons why judicial mediation can be a sensible option:
- Time: while it can take many months, if not years, for the final hearing to take place, a judicial mediation can be listed within one month of request.
- Cost: a mediation early in the case can produce significant cost savings where the parties are relieved from incurring expenditure on disclosing and reviewing documents, drafting witness statements and preparing for and attending multi-day hearings.
- Confidentiality: unlike nearly all final tribunal hearings to which the public have access, judicial mediations are held in private.
- Public relations: the corollary of the confidential nature of a mediation is that any sensitive facts or matters remain hidden from public scrutiny.
- Disposal of a grievance: there may be a particularly sensitive or challenging grievance that the respondent faces and would prefer not to have to deal with. At a mediation the claimant might agree to withdraw all grievances.
- Data subject access requests (DSARs): it is increasingly common to see a grievance or tribunal claim accompanied by a DSAR from the claimant in an attempt to force the respondent to disclose damaging information. The claimant can agree at mediation to refrain from pursuing their outstanding DSAR.
- Finality: there can be no appeal from a mediated agreement. Contrast this with victory for a party at a final tribunal hearing, only to face a long drawn out and costly appeal on disputed points of law in dispute.
- Flexibility of remedy: the employment tribunal is limited in the remedies it can order, these being in the main compensation, re-instatement or re-engagement. In a judicial mediation, on the other hand, the parties have an open book to agree whatever they wish. This allows for a degree of creativity. As well as a settlement payment, this might include a transfer of assets (such as a company car or laptop computer), one party apologising to the other, an agreed announcement, an agreed form of employment reference, a commitment by the respondent to put certain measures in place (such as staff training on diversity and equality), an offer of the purchase of shares, re-employment or consultancy or even an agreement to enter into a joint venture.
- Certainty: a settlement reached at mediation avoids the risks of witnesses not coming up to proof at a final hearing whether because of fading memories or challenges in dealing with cross-examination.
- Focus: what is the point of participating in a judicial mediation when the parties could in any case reach a negotiated settlement without one? It seems a fair question, but the reality is that a commitment to judicial mediation can bring true focus to the minds of the parties and a willingness to reach a deal during the time that has been set aside, especially when the process is hosted by a skilled employment judge.
Judicial mediation could be wise choice for respondents and claimants seeking to close the book on a dispute in a period when the tribunal system is under significant strain.