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Written by Sally Hubbard. Posted in Blog
Judicial Mediation can sometimes be a sensible way for clients to resolve their Employment Tribunal claims. At Lincs Law Employment Solicitors we want to provide as much help as possible and so please read this post to find out why Judicial Mediation might be suitable for you.
Whilst we always hope our posts are helpful, nothing beats discussing your personal situation with a fully qualified Employment Solicitor. If you would like a no obligation, free consultation, just fill out a contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512
Judicial Mediation is a formal process where an Employment Judge acts as a mediator between the parties. Essentially, the idea is that both parties submit a formal document called a “Position Statement” setting out their objectives in terms of agreed actions and compensation. The parties then undertake negotiations through the Employment Judge to see if the matter can be concluded in this way. It is not an Employment Tribunal hearing, but the parties are required to attend the mediation fully prepared to engage in the process. Any final agreed outcome between the parties is binding upon both and can be enforced.
An Employment Tribunal claim will be identified as suitable for Judicial Mediation by an Employment Judge during a Preliminary Hearing. Claims for discrimination and equal pay are considered suitable, especially if there is an ongoing relationship between the employer and employee and the employment contract has not ended.
Judicial Mediation is an entirely voluntary process. Neither party to an Employment Tribunal can be required to mediate. Therefore, if parties have agreed to enter into mediation, it is likely a settlement will be achieved at the end of the process.
Judicial Mediation will usually be a quicker process – especially taking into account the difficulties currently faced by the Employment Tribunal dealing with the sheer number of claims. A multi-day discrimination matter could be waiting nearly a year for a listing, whereas, if the parties have agreed to Judicial Mediation this can take place within a few months.
Although all parties are required to attend, and an Employment Judge acts as a mediator, this is not a process where evidence is required or where there is a winner or loser. The idea is to achieve a mediated resolution of the dispute. Where there is an ongoing employment relationship, rebuilding that relationship after a contested Employment Tribunal claim where one party has won and one party has lost can be incredibly difficult.
It follows from the above that mediation is very cost effective and, if you are able to achieve a mediated resolution, this will be substantially cheaper than progressing through a full Employment Tribunal claim.
In addition, the Employment Tribunal are restricted as to what they can and cannot award at a Final Hearing. However, in Judicial Mediation, it is common that mediated resolutions include agreements as to Employer References, changes to terms and conditions of employment etc which would not (and sometimes could not) be included in an Employment Tribunal Judgment.
Although applicable to all settlements, not just through Judicial Mediation, the recoupment regulations do need to be considered as a factor. To explain, if a Claimant has been receiving benefits during a period of unemployment, as part of any judgment and award an Employment Tribunal will make an order that those benefits must be repaid. The amount of any award is not increased to take recoupment into account. In fact, the Employment Tribunal will decide the total amount of any award and then the amount received in benefits is deducted. This does not happen in the same way if there is a settlement, which includes Judicial Meditation. No benefits need to be repaid in such circumstances.
If you agree to Judicial Mediation and it is unsuccessful (you can’t agree a resolution with the opposing party), you can still continue with your Employment Tribunal claim. You are not prevented from continuing with your claim because you have agreed to Judicial Mediation. The only way your Employment Tribunal claim would be brought to an end is if there was a mediated resolution to your dispute. Also, any matters discussed, or concessions made, at the Judicial Mediation cannot be referred to in the open proceedings.
Some clients report that as this is a different type of process (without any witnesses going into the witness box or any final Employment Tribunal Judgement), they are sometimes unhappy with how their litigation was brought to a close. This is not to say that they have not achieved what they would have achieved at the Employment Tribunal by way of any financial compensation or similar. Only that they have not felt the sense of closure in the same way as if the matter been litigated to a Final Hearing.
If you have been asked to consider Judicial Mediation, please fill out a contact form, engage in a web chat, email contactus@lincslaw.com or call us on 01522 440512 for a no obligation, free consultation about your situation with an Employment Solicitor. Alternatively, for more information about Lincs Law Employment Solicitors and how we help clients with their Employment Tribunal claims, please visit our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Sally Hubbard
Specialist Employment Solicitor
Lincs Law Employment Solicitors
Sally is a Lincolnshire girl through and through and has lived in Lincoln her whole life (apart from a brief spell when she went to university in Nottingham, but we don’t talk about that). She began her career with Lincolnshire County Council qualifying as a solicitor in 1996, which she believes now makes her "vintage".
