PLEASE NOTE: This page is intended to give general information about the law but is not intended as legal advice and you must not rely on it as such, nor is any liability accepted if you do rely on it. The law may change from time to time and we cannot include all elements of the law and its application in this summary. For further advice relating to your circumstances, please contact us.
What is Judicial Mediation?
Judicial mediation is an alternative way to try to settle your employment tribunal claim.
It involves bringing the parties together at a preliminary hearing (usually listed for 1 or 2 days), where a neutral Employment Judge acting as a mediator will try to assist the parties to resolve their dispute.
How do I request Judicial Mediation?
At the preliminary Case Management Hearing, the parties will be asked if they would like the case to be considered for Judicial Mediation.
If both parties agree, a Regional Employment Judge will consider the file and decide whether the case is suitable for Judicial Mediation. This will depend on various factors, such as the particular Tribunal’s resources, whether the issues in the case are suitable for mediation, whether the employee is still employed and the length of the final hearing.
If the case is appropriate, then an offer of Judicial Mediation will be made to the parties. Usually, a telephone case management discussion will then follow where the Employment Judge will fix a date for the mediation hearing and tell the parties what they need to do to prepare.
Why should I participate in judicial mediation?
You can achieve a quicker resolution of your case and avoid several months or years of being locked in stressful, expensive, public and uncertain litigation with the other party.
There is a reasonably good chance that your case will settle.
Having an Employment Judge as a mediator may help to regulate either party’s unrealistic views on the strength of their own cases.
Pretty much everything is up for negotiation, so the parties can agree on outcomes that wouldn’t necessarily be available from a successful Tribunal claim.
Do I have to participate in Judicial Mediation?
No. The process is completely voluntary.
However, if your claim is being funded by legal expenses insurers you should check their terms. As a condition of supporting your claim, they may expect you to participate in Alternative Dispute Resolution (ADR), which would include Judicial Mediation.
How does it work?
The parties will be in separate rooms so that they can have their own private discussions. Typically, the Employment Judge will go to the Claimant’s room first to discuss the opening offer. The Employment Judge will then move between the rooms delivering the parties’ respective comments, views, offers and counter-offers. The Employment Judge will not pass any information to the other side without your agreement.
Prepare for a long day and be patient. There will be a great deal of waiting around. Often, the other party will take a long time to come back on a point that you think is very straightforward. Don’t let this put you off.
If a settlement is reached, the parties will agree terms. This could either be by Settlement Agreement or an ACAS COT3 agreement. Often, the Tribunal will have asked the parties to discuss and agree the basic terms of an agreement beforehand.
Once settled, the claim will be withdrawn and dismissed.
What if a settlement is not reached?
If a settlement is not reached, then the claim will continue to run as before.
Will it cost me anything?
There is currently no fee payable to the Tribunal for judicial mediation for a claimant. An employer must pay a flat fee of £600.00.
If you have legal representatives, then there will be a cost for their time preparing for the hearing and representing you on the day. However, this is money well spent if the case settles and a long, expensive final hearing can be avoided.
As part of the settlement, you can ask for your legal fees to be covered by the other side. However, they are not obliged to agree.
Can what I say during Judicial Mediation be used against me at a Tribunal hearing?
The Judicial Mediation is confidential and held in private. This means no-one can refer to documents used, or comments made by either party at any subsequent hearing.
The Employment Judge allocated to your final hearing will not know about the mediation either.
This means that (within reason) you can speak freely during the mediation hearing and have a really good “gloves-off” attempt at settling the matter.
How does ACAS conciliation fit in with all of this?
An independent ACAS conciliator is assigned to your case from the outset. If Judicial Mediation fails, this does not affect your ACAS officer’s role and they will still be available to assist you with settlement if you should need them.
Can my mediation go ahead during the Covid-19 restrictions?
Yes. Many Tribunals are now hearing mediations remotely by Zoom, Skype, Teams or the Tribunal’s own Cloud Video Platform (CVP). Remote access means that Judicial Mediations can be listed quite quickly and very efficiently.
If you have any questions about Judicial Mediation, or if you require assistance or representation at a Judicial Mediation hearing, please contact us.