Despite the absence of fanfare, Employment Judicial Mediation does sometimes become an issue for the employment lawyer or human resources professional.
It is now on potential offer in every single Employment Tribunal.
The scheme was piloted in Newcastle, Birmingham and London Central during 2006-07. It was introduced throughout England and Wales in January 2009 and was formally launched in Scotland in June 2009.
To recap it can be offered to the disputing parties in an Employment Tribunal where there are all these factors present - The case has a discrimination component, the person is still employed and it is listed for hearing in excess of 3 days. There is an Employment Tribunal Judge with mediation training available who can mediate in every Tribunal.
In the above circumstances, it is a possible that you(or more likely your client) could be offered Judicial Mediation, though it is still rare and I meet only a few lawyers who have done more than one Judicial Mediation.
So, this is not mainstream.
To be clear, there is no obligation to mediate. You or your client cannot be forced to mediate if you do not want to.
The most compelling reason to use Employment Judicial Mediation is the fact that it is free.
Furthermore, judicial mediation like most other forms of mediation is successful. According to statistics on the Tribunal's website, the success rate is 65% on the day with the majority of other claims settling before trial.
This is a lower rate then other figures to mediate. In other words, it has a lower success rate than most accredited mediators.
Other statistical information is provided by the ELA Survey of Judicial Mediation. Though dated July 2008 and focusing on the pilot, this illustrates the success of Judicial Mediation. 73% of surveyed lawyers said they would use the scheme again.
By way of example one set of Chelmsford employment lawyers recently expanded the benefits of judiciial mediation on its website- "We represented a Chief Executive of a large national employer who brought claims for unlawful race, religion or belief and disability discrimination against their employer. As an alternative to continuing with the Employment Tribunal proceedings, we explored mediation with the individual's (former) employer. We participated in a successful one day judicial mediation chaired by an Employment Judge at the London Central Employment Tribunal. We achieved a favourable settlement for our client, thereby avoiding the need for him to continue with complex and protracted legal proceedings."
However, this does not mean that you should automatically say yes to Judicial Mediation.
Therefore, when should you avoid employment judicial mediation like the plague?
Well, frankly the answers are similar to when you should not mediate at all.
This includes.
1 If you do not think the case will settle. Whilst mediation does work in at least 80% of cases, there are certain occasions when mediation will not work or the case is just not destined to settle. There is no point in going to mediation if everything about this case leads you to believe that the mediation will not work.
2 If the parties are not ready to settle. Sometimes there are certain variables which need to be in place for the case to be settled such as disclosure(which frankly should be dealt with prior to the mediation) or simply the parties need to get rid of some of their anger and need to take time to work through the matter.
3. If you do not have confidence in the Employment Tribunal Chairman.Some of the criticism of the Chairman mediating is that they not have sufficient competence and are not sufficiently interventionist enough. If you have doubt in the the mediator for whatever reason you may be making the wrong move in consenting to mediation. Of course if you are dealing with a Tribunal Chairman you are not exactly going to say "I do not want to mediate as I think you are incompetent."
4 If the costs in preparing for the mediation would be disproportionate to going to trial. Mediation can last longer than 1 day so be what is the fall back if you cannot settle on the day? Can the Tribunal Charirman continue to assist if the deal is not done.
5 If your client is dead against it. If the mediation fails, will the client blame you for the time and costs of a failed mediation? It may be better to stay conservative and let due process go ahead.
6 If the mediation will take place too late. One of the appeals about mediation is that it can happen whenever you want. If you have judicial mediation you are in the hands of the Court Timetable and you may be subject to a mediation which will not take place immediately.
Justin Patten, Employment Mediator