Introduction
What is changing?
Key benefits
Limitations
Experience from Great Britain
Comment


Introduction

Judicial assessment and mediation were launched in the industrial and fair employment tribunals on 31 March 2023, bringing Northern Ireland in line with the rest of the United Kingdom and offering employers new avenues for alternative dispute resolution.

Judicial assessment and mediation has been available in employment tribunals in Great Britain for around a decade. For various reasons, they were never implemented in Northern Ireland. This latest development will be welcomed by practitioners, employers and litigants in the industrial and fair employment tribunals. This article summarises the key changes and reflects on the experience of both schemes in Great Britain.

What is changing?

Judicial assessment and mediation are both forms of alternative dispute resolution (ADR). The purpose of ADR is to encourage parties to resolve disputes at an early stage, without the need for a full hearing or protracted litigation. This accords with the tribunal's overriding objective to deal with cases in a timely and cost-effective manner.

Judicial assessment
Judicial assessment will allow employment judges to give an assessment of the strengths and weaknesses of each party's case at an early stage. It will almost always be available at the first case management preliminary hearing. It is "indicative" in nature, meaning that the employment judge will make a "practical assessment" of the case and may indicate its potential outcome and remedies. It does not incorporate a mechanism for settlement, although the parties may agree settlement after the judicial assessment has been made.

Judicial mediation
Judicial mediation provides a structure in which the parties can explore the resolution of the case through discussions mediated by an employment judge. It will only be offered in suitable cases, and where the parties agree there is a high likelihood of successful resolution. Usually, only cases listed for three or more days will be considered. Unlike judicial assessment, this process is "facilitative" and is concentrated on achieving a settlement.

Key benefits

ADR has several benefits compared with resolving disputes at a tribunal hearing.

Encouraging dialogue
Both processes are voluntary. Agreeing to ADR can show a willingness to engage with the other party's position. This discourages the brinkmanship often seen in litigation, where parties wait to settle until the court proceedings are about to start. Views expressed by the employment judge in judicial assessment are confidential and non-attributable, and that judge will not ordinarily be involved in an eventual hearing. Discussions during judicial mediation are privileged, encouraging an open dialogue on the key legal and factual issues.

Unrepresented litigants
The availability of ADR at an early stage may assist unrepresented litigants. Such litigants may not have a full understanding of the key legal issues, or the merits or value of their claim, and may conduct their claim in a manner that will increase costs. ADR may also be an attractive alternative to an adversarial and stressful litigation process.

Existing employees
Judicial mediation may have significant advantages over a tribunal hearing, as the parties can agree wider practical solutions (eg, an apology or an agreed reference), which the tribunal cannot order. The less formal and adversarial nature of judicial mediation can also help preserve the employment relationship.

Narrowing disputes
Even if ADR does not result in settlement, it can significantly narrow the areas of dispute and encourage settlement before the hearing or reduce the number of hearing days needed.

Cost
Where successful, ADR at an early stage can significantly reduce costs for both parties. This is particularly true for employers, which will usually incur greater costs and management time in defending a claim, especially those involving large numbers of witnesses. Judicial assessments are most likely to be suitable for simpler or low value claims, which can incur disproportionate costs. In more complex claims, judicial mediation can offer a large cost advantage compared with a lengthy hearing. Unlike private mediations, judicial mediation is free and has no venue hire costs.

Limitations

Despite these benefits, there are several limitations.

Private mediation
Some litigants may view judicial mediation as not being distinct enough from the tribunal process, given that it takes place at the tribunal, with an employment judge and is directly linked to the case management process. In these cases, private mediation may still be preferred. If a claim involves factual disputes over specific business issues, appointing a private mediator with industry knowledge could be more conducive to settlement. Private mediations will naturally be more flexible in terms of scheduling, venue and time available.

Public vindication
Claims involving allegations of discrimination, whistle-blowing or equal pay can be highly contentious and the parties may see greater value in obtaining a published judgment that vindicates their position. This can be especially true where a case has attracted media attention or involves serious allegations against a public body.

Class actions
Judicial assessment will not be suitable for multiple-claimant actions in which not all claimants agree to their claim being judicially assessed.

High-value cases
Neither scheme is likely to be suitable where the parties are also engaged, or may become engaged, in related high court actions, such as a shareholder dispute or contractual bonus claim.

Experience from Great Britain

Both judicial assessment and mediation have received mixed feedback since their implementation in Great Britain. However, available statistics are limited and both schemes were materially impacted by the introduction of tribunal fees in Great Britain from 2013 to 2017. During this time, many cases suitable for judicial assessment will simply not have been lodged, while judicial mediation required a £600 fee. The following points are worth noting:

  • Judicial assessment has not proved to be a popular option. Although the Presidential Guidance on Alternative Dispute Resolution provides considerable detail about how judicial assessments should be conducted, in reality judicial assessment is quite rare and does not happen in the majority of cases.
  • Assessing the judicial mediation pilot scheme, a 2010 Ministry of Justice report concluded that the cost of implementation outweighed its benefits.
  • The Employment Lawyers Association surveyed practitioners on the success of judicial mediation in 2015. From the results, only 24% of respondents considered that it was "working well", while 40% considered that it was not working well. Nevertheless, 61% felt it should be available. However, 43% of respondents considered that some form of early conciliation or mediation should be compulsory, including 51% of in-house counsel. Overall, 46% of respondents felt that ADR has had a positive impact.
  • Since this survey took place, there has been an increase in requests for judicial mediation. It has become an increasingly popular option as both judges and practitioners have gained experience in how to conduct these mediations effectively. Mediations can often take place much more quickly than a final hearing (which is particularly important at the moment due to a large backlog of claims), and can also be offered flexibly by video or even telephone.
  • A new pilot ADR scheme has been running in a number of employment tribunal regions since 2020. This is compulsory ADR for cases of six days or longer, and takes place with a judge after exchange of witness statements. The process involves the judge assisting the parties to reach a resolution, and they can also give the parties a non-binding evaluation of the merits of the claim and the response. The scheme has not yet been extended to all regions, but if successful it may be something that is adopted in Northern Ireland as well.

Comment

It is difficult to predict the impact judicial assessment or mediation will have in the industrial and fair employment tribunals in Northern Ireland. As always, the success of ADR will depend on the individual case and the parties themselves. Judicial mediation is to be reviewed in a year's time, followed by a consultation exercise on how the scheme has operated and how it should be operated going forward.

Their implementation will, however, be a welcome development generally for employers, adding to the available methods of resolving employment claims at any early stage, and building on the reintroduction of early conciliation in 2020.

‚ÄčFor further information on this topic please contact Jack Balmer or Ciara Fulton at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.