JUDICIAL MEDIATION

A guide to judicial mediation from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

If you would like advice on judicial mediation, please contact us.

What is judicial mediation?

Judicial mediation is a formal process where an employment judge acts as a mediator to see if the parties (ie the employee referred to as the Claimant and the employer referred to as the Respondent) in an employment tribunal claim can reach a voluntary agreement to avoid a final hearing.

It is not an employment tribunal hearing, but the Claimant and a decision maker of the Respondent are required to attend the mediation fully prepared to engage in the process.

Any final agreed outcome between the Claimant and the Respondent is binding upon both and can be enforced.

Is judicial mediation compulsory?

No, both the Claimant and the Respondent must agree to take part in judicial mediation.

Not every case is suitable for judicial mediation. This will be decided by an employment judge at a case management preliminary hearing. Claims for discrimination are considered suitable, especially if there is an ongoing relationship between the Claimant and the Respondent and the employment contract has not ended.

Even where the employment relationship has ended, cases are often considered to be suitable for judicial mediation especially when the final hearing has been listed for multiple days.

How does judicial mediation work?

Judicial mediation was traditionally conducted for one day in employment tribunal waiting rooms where the Claimant sits in one room and the Respondent in another room. Nowadays, judicial mediation is usually assigned for one day and conducted by phone where the employment judge will shuttle between the Claimant and the Respondent relaying what that party seeks by way of a resolution.

Before the day of the judicial mediation, the Claimant and the Respondent will need to agree a bundle of documents for use by the employment judge, which will normally include:

the claim form (ET1) and any separate details of claim
the response form (ET3) and any separate grounds of resistance
orders made by the tribunal
any key documents that the parties wish to refer to
the Claimant’s schedule of loss
the Respondent’s counter schedule of loss
a 'statement of expectations' of both parties
a draft COT3 agreement or a draft settlement agreement.

If the judicial mediation is successful, the process is not binding unless an agreement is reached and recorded in either a COT3 agreement (and ratified through Acas) or in a settlement agreement and signed by both parties.

What are the benefits of judicial mediation?

The benefits are:

the chances of reaching a settlement are higher than trying to reach a settlement through Acas or between the parties, as the process is voluntary and would have been agreed by the Claimant and the Respondent
speed of process, normally within a few months, compared to a final hearing which due to the backlog of cases, is likely to be listed in 12 to 24 months of the case management preliminary hearing
no evidence is required
there is no winner or loser
cost effective and substantially cheaper than progressing to a final hearing
the ability to include provisions in an agreement that an employment tribunal cannot award eg reference
rebuilding an ongoing employment relationship, where after a contested final hearing this may be difficult
the recoupment provisions will not apply unlike a tribunal award eg if a Claimant has been receiving benefits during a period of unemployment
if it is unsuccessful and resolution cannot be reached, the parties can still continue with the employment tribunal claim and 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?

There is only really one and that is there will be no contested case where an employment tribunal has made a decision on the claim after hearing the evidence of both the Claimant and the Respondent.

The material contained in this web page is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.