Judicial mediation seems to be something of a Marmite topic among employment practitioners. Some see it as a cost-effective option for settling what might otherwise prove to be long-running and costly litigation. Others see it as a time-consuming and often unsuccessful exercise, conducted by individuals who are employed as judges (not mediators) for a reason.
For my part, I am mostly in the former category. And although not every case is capable of settlement, most in my view are. Judicial mediation can be a good mechanism for achieving that outcome. In this article, I set out some thoughts on the sort of cases where judicial mediation might (or might not) be useful, and how to best place yourself and your client for a successful judicial mediation.
What are the advantages of judicial mediation?
In addition to the many benefits of settlement more generally (no findings of fact, no public judgment, avoidance of litigation risk etc.), there are certain matters which make judicial mediation a particularly useful option in many cases:
- The service is offered free by the Tribunal, and the costs associated with attending a judicial mediation tend to be relatively low – a short Preliminary Hearing with the Regional Employment Judge, a bare-bones bundle of documents, and attendance at the Tribunal for one day.
- Judicial mediations can often be listed at short notice. That is particularly beneficial at present, when very long delays in matters being listed for trial are the norm. I am told that, at the time of writing, London Central Employment Tribunal is listing five-day trials from September 2020 at the earliest. But a judicial mediation can be listed essentially immediately (according to the parties’ availability, and subject to the short Preliminary Hearing mentioned above and mediation bundle preparation). Keeping in mind that a five-day trial might result in a long wait for a reserved judgment and a separate remedies hearing several months down the line, the potential for judicial mediation to offer a swift resolution under the auspices of the Tribunal is clear.
- The fact that a judicial mediation takes place at the Tribunal, I believe, causes some parties (particularly unrepresented claimants) to view it more as a part of the proceedings themselves. This may make settlement more likely than through a private ADR method. In short, the involvement of an Employment Judge and the “stamp” of the Tribunal can be a powerful factor, even if largely a psychological one for some.
- There is far greater scope for claimants to obtain remedies which are of real potential value to them but which the Tribunal could not award at a final hearing. For example: outplacement counselling, undertakings to attend training courses, charitable donations, confidentiality and non-disparagement obligations, and apologies or expressions of regret. These can allow claimants to feel a sense of redress that they might not otherwise be able to achieve, and sometimes the things that really matter do not in fact cost respondents a huge amount in financial terms. While this is, of course, true of any form of negotiated settlement, the point that I have just mentioned above – regarding the involvement of the Tribunal itself – can make judicial mediation a particularly useful forum in which to explore these creative settlement options.
What sort of cases might be suitable for judicial mediation?
Although judicial mediation will be suitable in many cases, there are a couple of types of case worth highlighting in particular:
- Unrepresented claimants: Practitioners acting for respondents will know the difficulties associated with acting against litigants in person, who are often – unsurprisingly – distrustful of anything the respondent or their representative says. The presence of an Employment Judge can make a judicial mediation a useful forum to convey points that otherwise may not “land” with an unrepresented claimant. These may relate, for example, to the merits of a particular cause of action, the realistic value of their claim, or the feasibility of remedies such as reinstatement or re-engagement.
- Claimants who are still employed: Plainly, where the employment relationship is continuing, there may be a desire to avoid adversarial and protracted litigation. That is even more the case where there are allegations of discrimination and the respondent will need to be mindful of the risk of potential claims of victimisation. A negotiated settlement can bring the proceedings to an end, and often this will be an opportunity to negotiate the termination of the claimant’s employment (where both parties wish to explore that option and/or where it is clear that the employment relationship has broken down).
There will, of course, be cases where judicial mediation may well not be worth it. Such cases include those where one of the parties considers it fundamental that a particular finding of fact or admission is made, where a claimant is intent on obtaining a remedy which is simply not on the table from the respondent’s perspective, or where the parties are so far apart on numbers that settlement is simply outside the realms of possibility (though do not underestimate how much movement might be seen on both sides).
Top tips for securing settlement at a judicial mediation
The success or failure of a judicial mediation, even in a case which is capable of settlement and in which both parties want to settle, is influenced greatly by the approach the parties take both to preparation and on the day. A few key points:
- Manage your client’s expectations: It is an unusual case in which the parties will settle for the full value of the claimant’s schedule of loss. And yet it is surprising the number of litigants who arrive at a judicial mediation with an all-or-nothing mentality, or unrealistic expectations. It is important that representatives impress upon their clients the importance of compromise. It should go without saying that a mediation where neither party is willing to compromise on anything is doomed to failure.
- Identify your red lines and your bargaining chips in advance: It is vital that parties have a clear sense of a number of things in advance of the mediation, including: their opening offer; their top/bottom line; and a view on what is a “must have” and what is a “would like” for the purposes of negotiating. The mediation day itself is likely to be busy, with negotiations and decision-making potentially moving at a quick pace, so identifying these matters beforehand is important.
- Spend more time negotiating, and less time game-playing: While negotiation inevitably involves strategy and second-guessing what the other side will do, posturing and game-playing will often hinder a settlement being reached. That is particularly true in the context of a judicial mediation, where there is generally a fixed finish time of 5pm (unlike in privately organised mediation). If you get the ball rolling early by making offers and counter-offers, there is more scope for the parties to reach an agreement within the limited time-frame available. Remember that agreeing a number isn’t the end of the matter, and negotiating terms may not always be as simple as expected.
- Let the nitty-gritty (but not the merits) take a back seat: The underlying merits of a claim or defence are likely to inform the approach that a party should take to negotiation and settlement. They should be kept in mind, and the parties should listen closely to anything the mediator says about strengths or difficulties in either side’s case. But a judicial mediation is not the place to get into the gory details of the claim, or to litigate the underlying facts. This is something that many parties, particularly claimants, are often tempted to do. The point of a negotiated settlement is, in many respects, to obviate the need for that; too great a focus on the factual allegations is likely to reduce the chances of reaching a settlement.
- Know when to walk away: It may quickly become apparent that the mediation is not going to succeed. If that is the case, there is often little point dragging on the process. Doing so might reduce any possibility of settlement in the immediate aftermath of the mediation (see below) and runs the risk of creating a situation where one party ends up bidding against themselves.
- Don’t assume that it’s over just because you don’t settle on the day: In some cases, the value of the judicial mediation lies in opening a dialogue between the parties rather than achieving settlement in itself. Representatives should not hesitate to follow up with the other side after the mediation if it seems that settlement might seem possible. Many cases settle in the days or weeks following a judicial mediation.
The above thoughts are, of course, based on my own views and experience of judicial mediation in the Tribunal. Many others may have differing views, or further thoughts of their own from alternative perspectives.