Tribunal practice in Covid times – rise in uptake of judicial mediation (JM)

News on employment tribunal claims. Personnel Today has just reported on the latest quarterly figures which have just been published by the Ministry of Justice showing an 18% increase in single claims during lockdown. The general consensus is that the number of cases will continue to increase over the next year, sparked to some extent by the ending of the Furlough Scheme, but also, generally, the serious economic impact of the virus on both individuals and businesses. Last month, the government announced a raft of measures to help clear the tribunal backlog which is resulting in most claims not being listed for a hearing until at least October 2021, and in some parts of the country well beyond that. To help with that from 8 October employment judges will be able to hold more virtual hearings and judges from other areas of the judiciary will be deployed to the employment tribunals. Also, parties are being encouraged to look at alternative ways to resolve their disputes, particularly mediation, including judicial mediation and it appears that the move towards doing all manner of things virtually, online, has made judicial mediation even more popular. Remember, this is the process of bringing the parties together at a private preliminary hearing before a trained Employment Judge who remains neutral and tries to help the parties resolve their dispute. In the past couple of weeks we have been hearing from Jacques Algazy QC, Head of Cloisters chambers where a number of the barristers have experience of this. Jacques himself frequently sits as an Employment Judge and he tells me he has seen a definite rise in take up rate for judicial mediation since lockdown. Jacques again:

Jacques Algazy: “When I do case management is we systematically ask parties whether they're interested in having judicial mediation, which we offer all cases over a certain length, and I can tell you that in lockdown the uptake has been, I would say, and this is all anecdotal of course in discussions with my colleagues and with my own experiences, but certainly the uptake for judicial mediation, if you're telling the parties that their 7 day case is not going to be heard until October 2021, the appetite has certainly increased because the mediations can take place a lot quicker and judicial mediations lend themselves particularly well to the remote model. You can set up rooms, as I said earlier, you know, three rooms, just as you would in a judicial mediation in real life, and move from room to room seamlessly, and the whole thing is particularly well suited to being done remotely because it is not the adversarial background and the witnesses and all that sort of stuff that you would get. Equally I can tell you that, anecdotally, the success rates of judicial mediation, certainly in the region in which I work, have been traditionally quite high and, I understand, are rising. So I would certainly say that that is an area that is going to be a growth area. There is also something that isn't in every region. There is a pilot in my region that has been introduced since April of this year. Every case over six days has a mandatory ADR hearing about six weeks, approximately, after exchange of witness statements. It's not a mediation, it's not a judicial assessment, it's a mandatory ADR listed for two hours with the parties to see whether or not progress can be made and, as I say, the parties don't get to opt in. It's part of the case management in every case, over six days, and we're waiting to see the effects of that pilot and whether or not that's going to kick in and have some effect. So, it will be a point in time if the parties are brought together for an ADR after witness statements have been produced, which will mean the bundles will have been produced and the case will be trial-ready, but that is often these days now, many months before the actual trial hearing, and so the appetite for alternative dispute resolution, which we are encouraging by virtue of this automatic direction, which is a pilot for the time being, I think will be very interesting to watch and may well be a fillip to further settlements down the road."