Judicial mediation ‘a good option’ given tribunal case backlog

Have you considered judicial mediation as a way to end an ongoing dispute? Given the backlog in the employment tribunal system many employers are now giving it serious consideration. The latest quarterly figures from the tribunal service help explain why. They show how the combination of the impact of Covid-19 on the economy and the pressure on court resources has led to the highest level of Single claims since 2013/14 and the forecast is for that picture to worsen when the furlough scheme ends. People Management reports how 'tribunal claims have surged during lockdown' with various commentators warning that the crisis could see claims 'skyrocket'. 

The government did see this coming and back in October you may recall they introduced a number of reforms aimed at reducing the backlog of cases with changes to the rules of procedure designed to increase the capacity to hear claims and make the process quicker, simpler and more cost effective. The changes have resulted in an increase the number of judges, an increase in the number of hearings being conducted remotely and active encouragement of parties to settle disputes without recourse to litigation. Back in December we flagged an article in that appeared in an ELA Briefing called 'Mediate not litigate?' showing how employment judges were actively encouraging lawyers to talk to their clients about judicial mediation, reminding them it's cost free option, relatively quick and is helping  reduce the strain on the tribunal system. The message to practitioners is 'expect judges to challenge you in case management discussions' to explain why your client is set on pursuing litigation, and that is something we've noticed that has been happening. But have those judicial mediations resulted in settlements? With most are being conducted remotely online, how has that played out? Let's find out from Amy Hextell who joined me by video-link from Birmingham. I started by asking Amy how many judicial mediations she had been involved in during the pandemic:

Amy Hextell: “So during the pandemic, I've done, I think, five judicial mediations now from the start, and they were one of the aspects of tribunal process that actually the tribunals were able to respond quite quickly to the pandemic in respect of. So we found that that was hearings were getting postponed, certainly towards the start of the pandemic, judicial mediations were going ahead and going ahead successfully. My own experience of them has been mixed. There have been some cases where we've reached an agreement, there have been some cases where we haven't, but that hasn't been as a consequence of the fact that we've been doing the mediation in a remote way - that was just because of the nature of the cases. My experience has been overwhelmingly positive of them. There's not anything really of them that I that I'm able to criticise. I think that one thing to note is that there is a bit of inconsistency in the way that the tribunals approach these. So in some instances the tribunal will hold the mediation by what they call CVP, which is a cloud video platform, and that's the tribunals own online video conferencing service, in essence, much like MS Teams or Zoom or Skype and I've had mediations take place in that format, which have been fine, and equally I've had mediations which have just taken place by telephone where the tribunal tends to do a bit of telephone tennis really, so they're phoning you, you're then speaking to your client, you're phoning the tribunal back, and then they're going to the other side. In that latter case there can be a little bit more delay, I think, in getting towards a settlement but again it's not been anything that I have thought has caused the mediation to fail or hasn't been helpful.”

Joe Glavina: “We know employment judges have been using CMDs to push judicial mediation as an option but, for many clients, it will be new ground for them and not really something they've ever considered."

Amy Hextell: "Mediation I think has been something that over the course of the last few months of the pandemic has been a primary feature really of many cases which we might not otherwise have mediated in and I think that that's for a number of reasons. The mediation process remains voluntary for both parties, so you don't have to engage in it, but we've certainly seen the tribunals pushing and advocating for mediation far more than they ever did and actually relaxing some of the rules that were previously in place where it would have taken up physical tribunal resource. So for example it used to be the case that your hearing had to be listed for at least three days before the tribunal would offer mediation but we have seen a relaxation of that in in some cases and I think that that is primarily because the tribunals are so overwhelmed by dealing with a backlog of cases which has resulted in cases taking many months, if not years to progress through the tribunal system. I think for employers and for clients and for parties involved in litigation in the tribunal there's a need, really, in light of that to make sure that mediation is really part of the strategy that you're considering in dealing with the claim. So whereas you might otherwise have a strong case and be committed to seeing get through to a tribunal hearing, I do think that there is some benefit in considering, given that it's likely to take much longer to get a case concluded, during which time you may have witnesses who have left the business, you may have witnesses who unfortunately have become unwell as a result of the pandemic. The longer proceedings take, the more difficult it is for people to remember what went on a number of years ago and so there is some benefit in at least considering properly whether mediation might be something that is helpful and that's something new. So it is something that we perhaps wouldn't have pushed so much with clients in the past but now we are actively encouraging them to consider as part of their overall strategy for the very reason that it's easier to get a mediation at the moment, they are done quite quickly and easily, and because proceedings are taking so long to conclude. That's not to say that we are recommending settlement in cases where that that isn't the proper recommendation or anything like that, and of course we will act on the client's instructions, but it's something that we are actively encouraging them to think about and certainly discussing with them as part of the overall strategy for dealing with litigation."

The Tribunals Service has produced guidance on judicial mediation for both England and Wales, and Scotland. There is also Presidential Guidance for both jurisdictions on the conduct of proceedings, during the pandemic. We have puts links to all of that in the transcript of this programme.

LINKS
- Link to HM Courts & Tribunals Service guidance on judicial mediation at employment tribunals
- Link to Presidential Guidance on the conduct of tribunal proceedings during the pandemic