There is an excellent article written by Alex Locke for the ELA Briefing on the issue of employment judicial mediation.
We now learn via Alex the following.
There are very few employment judges trained as mediators. In one of the London regions only two judges have been trained.
There appears to be inadequte facitiies such as more than 1 room available.
There is a lack of guidance given to parties which prohibits the judges from giving a steer to the parties.
Oh dear.
- First of all the presence of employment judges as mediators is no panacea. Some judges will really struggle with the concept of mediation so they may not necessarily be the best mediators. However they are better than nothing and some will be really good.
- Second, use of facilties is an important dynamic. If you struggle to find 2 rooms minumum, you are looking at paying for a venue. Do they expect the mediator to pay for that?
- Third, lack of guidance is probably the biggest problem identified by Alex. Within my mediation training very few lawyers have ever conducted mediation as an advocate. Many lawyers lack the confidence to deal with a mediation and need some kind of guidance as to at what point they need to mediate within a case.
All this is self inflicted harm.
It is tough enough getting parties to mediate as it is.
Most employment lawyers have done very few mediations if at all.
The absence of costs provision (seen in civil cases) means there is little incentive to mediate anyway.
There are other costs issues as well to consider such as the fees of the representatives if the mediator is free (on price).
Mediation will survive and grow but how we have fallen from the giddy heights when the Gibbons Review was published.
Justin Patten
Mediator