Delay, cost and unwanted publicity are just three of the many unattractive features of employment litigation. It is no surprise therefore to see a sharp rise in the uptake of judicial mediation as a preferred route to settling workplace disputes. Personnel Today has picked up on this with their article ’10 reasons to consider judicial mediation in an employment tribunal’ highlighting how, at the last count, there is backlog of around 51,000 cases in the tribunal system hence the interest in this alternative resolution procedure. Doubtless the pandemic has hindered the functioning of the tribunal system but, as the article points out, much of that damage has been mitigated by the successful implementation of video hearings. To that end, tribunals are using something called Cloud Video Platform software - very similar to Microsoft Teams and Zoom in the way it works. So how does judicial mediation operate in practice, assuming both parties agree to this process?
If both parties agree to try it, the Tribunal will normally arrange a telephone hearing to discuss the arrangements beforehand. So, details of who will be attending, the preparation of a bundle of documents, and the requirement to provide a Schedule of Loss.
On the day - and it is usually listed for a day - the Employment Judge will bring the parties together at the start and explain how mediation works the judge’s role in it. The judge will then allocate the parties to separate rooms - so virtual rooms if it is being done remotely - and he or she will shuttle between the rooms seeking to understand what the parties hope to achieve, managing their expectations and trying to find some common ground. So the judge is the mediator in these cases. If an agreement to settle is reached – and the success rate is high as we will hear - then that will usually be dealt with by ACAS, who will produce a COT3 settlement agreement. Importantly, there is a lot of flexibility in terms of what that agreement can encompass. So, as well as the payment of money it might include, for example, an apology, or an agreement to provide training, or re-employment or consultancy, or a combination of some or all of those things – it is pretty much an open book and that is one of the best features of mediation in our experience.
So, let’s hear more about our experience of judicial mediation during the pandemic. I phoned two lawyers who, between them, have been involved in a number of mediations in the past year on behalf of clients who were persuaded to try it – Rob Childe who is based in Manchester and Claire Scott from our Aberdeen office. I started by asking Claire if she’s noticed a rise in judicial mediation north of the border:
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: “Rob can I come to you in Manchester. How many mediations have you been in involved in during the pandemic?”
Rob Childe: “So, I would say over the course of the last 12 months, I've done three virtual judicial mediations and I think one of the most interesting points for me is how quickly the tribunals attending to list these at the moment, they seem to be prioritising them over the main hearings and preliminary hearings at the minute. So for example, the last case I did, I think it was eight weeks from the hearing with the judge to getting the judicial mediation heard. So it's really quick and efficient.
Joe Glavina: “Who from the company would attend, Rob?”
Rob Childe: “So, from the clients point of view, the key is to have someone who's got decision making authority out the hearing itself. And so usually, that's a senior member of the HR team. And what we've usually done beforehand is worked out what the parameters of settlement are, we might have prepared a counter schedule of loss and a sort of an offer that the other side can consider. And so the clients got involvement in preparing that schedule, but also then attending on the day.”
Joe Glavina: “Claire, what would 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."
Joe Glavina: “Rob – final question to you. Most judicial mediations are being conducted remotely these days so how would you compare the virtual experience with in-person traditional hearings?”
Rob Childe: “Well, I would say that the remote hearing is equally as good, if not better than an in person hearing. And so there's a number of advantages. From a time saving perspective. For example, you don't have to travel to the hearing, you don't have to wait around. So that brings the cost down. And it obviously reduces the inconvenience for everybody. And, and then I think the other thing that works really well is that all parties have got access to really good technology. So the problem is, the tribunals, if you're there in person, they don't always have good Wi Fi connectivity. And so it's quite hard to log on and edit documents, etc, such as the cat three, or schedule of loss or the like. But you know, when you when you work in virtually, we've all got access to good technology. And so the documents can easily be amended. And then in terms of the actual user experience, I think it's very similar because over the course of the last year, we've all got used to work in virtually using teams or zoom. And those are the platforms you use when you're doing your virtual mediation. So it's essentially the same, and it's just as effective, I think, in helping the parties come together and reach a resolution that's acceptable to both sides.”
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.
- 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