ET judges ‘actively encouraging’ judicial mediation

Out-Law News | 17 Dec 2020 | 12:19 pm |

Claire Scott tells HRNews that tribunal judges are using CMDs to test parties’ determination to litigate   
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  • Transcript

    Have you given enough thought to mediation as a route to resolving your employment disputes? It's a question that senior employment judges have been putting to employment lawyers north and south of the border as the tribunal system continues to creak under the backlog of cases. The views stem from an article that appeared recently in an ELA Briefing called 'Mediate not litigate?' which encourages lawyers to talk to their clients about judicial mediation, reminding them it's costfree option, relatively quick and is already helping  reduce the strain on the tribunal system. The message to practitioners is give judicial mediation serious consideration and, this is the key point, expect judges to challenge you in CMDs to explain why your client is set on pursuing litigation – that's something we have noticed happening already in CMDs we've been involved with, especially in Scotland. So let's hear more about this push towards judicial mediation. Earlier I phoned Claire Scott who is based in Aberdeen who told me she had noticed the rise:

    Claire Scott: "From my perspective I think it's been really interesting looking at the rate of judicial mediations particularly since lock down. I think initially judicial mediation wasn't something that everybody considered, only perhaps in discrimination claims and that sort of thing, but there's been an uptick in judicial mediation over the last few months, and over 2020, and I think some of the statistics are showing that they've saved well over 2000 days of judicial resources and there has also been some encouraging evidence that 66% to 75% of claims that enter into judicial mediation result in settlement and that certainly reflects what we're seeing at Pinsent Masons where there is certainly more interest in judicial mediation and what it can do for both parties, particularly as we're seeing such a backlog and claims because of COVID and it may well be a long time before any claim results in a final hearing. So I think there's much more of an interest in looking at judicial mediation to see whether that can resolve things and, of course, it's free compared to other types of mediation so it is of interest to clients. Certainly, we've seen in recent mediations that we've done over the last few months that have resulted in a successful outcome for our clients, that it can be a really useful way of resolving the situation before having to go through for a final hearing."

    Joe Glavina: What do you say to clients who are unsure about the process and perhaps reluctant to go for it, perhaps wary of having to pay a settlement?"

    Claire Scott: "Yes, I mean, it's not right for every single situation but it can be a very useful way forward and it should be something that the parties are considering at an early stage and, in fact, the tribunal judges are going to be asking a lot more, I think, in CMDs and preliminary hearings, whether mediation has been considered. In terms of the cost, I think you always have to balance up the cost of preparing and running a hearing compared to, even if you win, compared to the advantages of considering an earlier settlement, and that may be part of judicial mediation or otherwise. There are there are a number of advantages I see to judicial mediation. It can be relatively quick compared to the much longer process of waiting until you get a final hearing date set so you can try and resolve things far more quickly. The tribunals are doing a lot of the judicial mediations by phone at the moment. Some of them are by video call, but a lot of them are done by phone in, say, a three hour slot, or possibly longer, but often you're in a three hour slot of a phone call, and you can resolve things so that has its benefits from a cost analysis. But, yes, you do need to think about the fact that if you're going into a judicial mediation, it's not a hearing, and inevitably some compromise is required from both sides to dispute if a settlement is going to be achieved and I think when a party starts with an unrealistic expectation of the merits, or the value of a case, then that is much harder to achieve, so it does take some work in the first place, but yes, it can be a really useful process. It's confidential, it's not an open hearing, so obviously if things go to a final or an open hearing then the press can be informed, and others, so this is a confidential way to resolve matters or try and look at things rather than just going into a full hearing where everybody knows your business. There are alternatives, I suppose, you have to think about what are your best and worst case alternatives to getting a negotiated settlement agreement. So you've got to think about cost if you lose, but also the personal time and the investment of those parties, or witnesses, in a case. A lot of management time and stress goes into preparing for an employment tribunal so, depending on the case, it can be useful to think about mediation, and depending on the tribunal region that you're in, a lot of tribunals are working quite hard to list judicial mediations much more quickly than a full hearing, even though you know, they've got overloaded lists more widely. We are seeing certainly at Pinsent Masons a lot of these judicial mediations coming about much more quickly which is very helpful. I think the other thing about judicial mediation, and more widely mediation as a whole, is that you don't need to just focus on a monetary outcome, which can be really useful for both parties. It allows the parties to think about creative solutions to a dispute and, you know, you can get a lot more from a judicial mediation than you then you can from a full and final hearing, which can be really valuable, and it can help to break the deadlock that you face. So yes, we find that they can be very useful, but they're not for everybody and they're not suitable for every circumstance."

    In case you missed it, a couple of weeks ago Claire talked to this programme about 'employers of furloughed staff ‘who are grappling with redundancies’. She is highlighting the risk that if the business is continuing, with staff on furlough, there is the very real potential for the dismissal to be unfair and she goes on to explain ways to address that risk. You can find that programme on the Outlaw website.