Employment Tribunals are independent judicial bodies who determine disputes between employers and employees over employment rights. Usually this has taken the form of an a Hearing taking place before an Employment Tribunal at which evidence is heard and legal arguments are made with a decision (judicial determination) then being made on the case.
The process is a formal one involving evidence being led from witnesses and cross examination, which is very similar to what happens in an ordinary court. Records are kept and may be accessed for a fee.
Many employers choose to seek mediation as an alternative way to resolve their dispute which does not involve going through the normal tribunal hearing process. It is a form of what is commonly referred to as ADR – Alternative Dispute Resolution. Often mediation takes place PRIOR to any formal court action so can avoid the need for involving ACAS thereby saving all parties a lot of money and time.
Occasionally mediation fails. But that is not the end of mediation in the legal process.
What is involved in judicial mediation?
Judicial Mediation involves bringing the parties together for a Mediation Case Management Discussion before a trained Employment Judge who remains neutral and tries to assist the parties in resolving their disputes, which may include remedies which would not be available at a hearing before an Employment Tribunal (e.g. a reference).
Over 65% of cases mediated reach a successful settlement on the day of mediation. Most cases that do not succeed on the day of the mediation are settled before the hearing as a result of the impetus created by the Judicial Mediation.
Suitable cases are identified, as part of the normal tribunal process, by an Employment Judge at a Case Management Discussion when the Employment Judge advises the parties of the possibility of an offer of Judicial Mediation. If both parties agree to the case proceeding to a Judicial Mediation, the Regional Employment Judge considers the file and decides whether to make an offer of Judicial Mediation, depending upon resource constraints and the suitability of the issues to mediation. Parties are notified if an offer cannot be made.
An offer of Judicial Mediation is made by a telephone Case Management Discussion, when a date is set for the Judicial Mediation and any consequential variations to existing Orders are made.
The Judicial Mediation is confidential and held in private. Nothing said or taking place at the Judicial Mediation may be referred to at any subsequent hearing and the Employment Judge mediating is precluded from any further involvement in the case.
Does judicial mediation avoid ACAS?
“Judicial Mediation” is an alternative to a tribunal hearing but not an alternative to ACAS conciliation. Although ACAS and the tribunal judiciary collaborate in relation to Judicial Mediation, the statutory duty placed on ACAS is not compromised by the process and ACAS maintains its independence.