Judicial mediation – a different approach to alternative dispute resolution?

July 10, 2009

In this article, we consider judicial mediation, a relatively new form of workplace dispute resolution, in which the employment judge acts as mediator.

What is judicial mediation?

Judicial mediation is a scheme offered by employment tribunals in specific cases that allows parties to seek a resolution to the proceedings without the need for a formal hearing. It is aimed specifically at cases involving sex, race or disability discrimination, where the claimant is still employed by the employer. The idea behind the scheme is to reduce the number of complex and protracted discrimination claims reaching the stage of a full tribunal hearing. Such hearings are typically costly and lengthy and will often cause harm to the existing working relationship between the claimant and the employer.

How does judicial mediation work?

Where in a particular case judicial mediation is identified by the employment judge as a potentially suitable alternative to a full hearing, the parties will be given an opportunity to consider whether this could be of interest to them. It will be open to either of the parties to refuse if they do not consider it to be appropriate in their particular circumstances.

If the parties agree, any formal timetable and deadlines that may have been set by the tribunal for preparation for a formal hearing will be suspended, and time will be set aside for the parties to meet with an employment judge. The employment judge, who will be a trained mediator, will assist the parties in trying to agree a resolution of the case. His or her role will be to facilitate a resolution of the dispute rather than considering the merits of the claim, as would be the case in a formal tribunal hearing. The judge will not provide an opinion about the case or make any decisions.

The mediation is conducted on a confidential “without prejudice” basis, so that if the mediation fails, the parties are free to pursue the proceedings to a formal hearing if they wish to do so. The judge who had been involved in the mediation will therefore not preside over the formal hearing or be involved at any preliminary stages, and the discussions at the mediation cannot be referred to in any subsequent hearing if the mediation is, for whatever reason, unsuccessful.

What are advantages of judicial mediation?

The mediation process is free. This can be a compelling factor, particularly in complex cases involving lengthy hearings, and is in contrast to ordinary mediation, which the parties would normally have to fund themselves. The power of tribunals under this scheme to suspend the formal tribunal hearing timetable pending the outcome of the process (which could save the parties time and expense if the mediation is successful) is a further potential advantage over other forms of mediation, where those directions may remain in force.

Judicial mediation also has the same benefits that come with any other form of mediation, such as the ability to achieve resolutions that are more tailored to the parties or to the particular dispute, and the opportunity to address any damage to the employment relationship that may have arisen as a result of the proceedings.

There may, however, be circumstances where judicial mediation, like any other form of mediation, may not be considered appropriate – for example, where the parties’ respective expectations and objectives are too far apart for a workable settlement to be achieved.

The future of judicial mediation?

Judicial mediation started out as a pilot scheme in 2006 and a survey of the scheme undertaken last year by the Employment Lawyers Association indicated that it had been generally well received by employment lawyers. Therefore, while it would appear that it still remains a relatively little-known form of dispute resolution, it could become a well-established feature of employment tribunal litigation in the near future.

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