Why should parties agree to a judicial mediation?

The headline statistic is that over 65% of cases mediated reach a successful settlement on the day of mediation itself. Further many more cases settle prior to the final hearing as the judicial mediation has brought the parties closer together from seemingly entrenched positions where the Claimant and Respondent were miles apart in respect of quantum.

What is a judicial mediation?

A judicial mediation is without prejudice to the Claimant's claim, the Respondent's response and the final hearing. A judicial mediation is confidential and held in private. Nothing said or which takes place at the judicial mediation may be referred to at any subsequent hearing and the Employment Judge mediating is precluded from any further involvement in the case.

Cases suitable for judicial mediation are identified at a Preliminary Hearing and as a general rule those suitable will be those where financial compensation will resolve the matter and a contentious point of law or a finding of fact does not need to be decided upon by the Tribunal. In reality complex cases of 3 days or more are flagged for mediation. Both parties are offered this as an option and must agree to enter into the mediation.

A judicial mediation involves bringing the parties together for a mediation at a private meeting before a trained Employment Judge who remains neutral and tries to assist the parties in resolving their disputes. 

What happens leading up to the judicial mediation?

The tribunal will order a judicial mediation and list it to take place for a full day. The parties exchange a list of mediation expectations which will include financial remedies and sometimes other practical solutions such as apologies and references by way of example.

The parties often agree in advance of the Judicial Mediation draft COT3 terms so that settlement is not hindered on the day as in theory once the financials are agreed then the numbers can be inserted into the draft COT3 terms and sent to the ACAS conciliator, whom the parties have liaised with directly (prior to the hearing) to be on hand, to confirm a legally binding settlement has been reached. 

What happens on the day of the Judicial Mediation?

Both parties meet jointly with the judge at the very start of the day, most commonly nowadays via video link. The judge advises the parties that for a settlement to be arrived at, both parties will have to be prepared to make compromises. A judge will usually say something to the effect that for a settlement to happen the Claimant will likely feel they have walked away for too little and the Respondent will have walked away paying too much. 

The judge briefly explains the process for the day. Both parties are sent to separate [virtual] rooms where they will remain (with the exception of a break for lunch) for the remainder of the day until a point whereby settlement is reached or the parties agree that a resolution on the day cannot be reached. The judge spends their time going between the [virtual] room of the Claimant and the [virtual] room of the Respondent relaying any movement in the offers between the parties. 

If a settlement in principle is arrived at then the work of the judge ends and the torch is passed to the ACAS conciliator who confirms that a legally binding agreement has been reached via COT3.

What are the pros and cons of a Judicial Mediation?

Advantages of a Judicial Mediation

Disadvantages of a Judicial Mediation

In comparison to a full substantive hearing the costs are far less to attend a judicial mediation as the bundle of documents required is small and the mediation only lasts for one day.

Ultimately it is a without prejudice form of alternate dispute resolution so either party can simply walk away at any point during the day.

When substantive hearings are five days or more in duration the dates for such hearings to be listed can take months to secure. In comparison, as a judicial mediation is only one day in duration they can be listed at relatively short notice.

If the mediation is unsuccessful then both parties will have incurred unnecessary costs in respect of the preparation undertaken and the day itself.

The judicial mediation taking place at a tribunal can focus the attention of the parties. The parties are more likely to take bigger jumps between their respective positions then can happen in the chess match with which without prejudice negotiations through ACAS can follow whereby an impasse can occur with neither party willing to concede an inch in via without prejudice correspondence. 

Both parties have to agree to a judicial mediation which can be frustrating for the other party if they are interested in settlement when the other wants the case to run to a substantive hearing.

Draft COT3 terms being agreed in advance of the judicial mediation should mean that once the numbers are agreed then issues such as the contents of a reference which can often derail ACAS settlements have already been dealt with. The draw of the judicial mediation is that the merits of the claim and corresponding defence whilst considered are put on the back burner to some extent to allow negotiation and settlement to come to the forefront. 

"Not having your day in court". This is often a frustration for many Claimant's who don't believe that the Respondent is held accountable for their actions as there is no actual judgment from the judge presiding over the mediation.
 

Conclusion

The without prejudice nature of the day does mean that both parties can walk away if the real intention to settle just isn't plausible. The minutia of legal argument is put to one side along with point scoring to bring about a resolution through compromise but both parties must be willing to make concessions to achieve it.

Disclaimer 

  • Please note - this guidance is not intended to be taken as legal advice. For individual situations you will need to take specific legal advice.
  • The information in this guide is correct as of February 2022.
  • All information provided should be read alongside the relevant Government Guidance at https://www.gov.uk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.