A positive alternative to costly litigation - William McParland

It is a confidential process designed to allow parties to have a candid, without prejudice discussion about resolving claims, without fear that any concessions will be used against them at a substantive hearing later.

Some will say that is perhaps achievable in other ways but in my experience the process suits circumstances where parties cannot reach a resolution entre nous but have better prospects of doing so with the direction of a Judge as judicial mediator.

Previously, judicial mediation was restricted to cases which were listed for three days or more, typically where the claim had a discrimination element and often where the claimant remained employed by the respondent. There has, however, been a shift in focus – which may explain the upturn in popularity of judicial mediation – to include other types of claims such as unfair dismissal.

Employment Tribunals are obliged to “wherever practicable and appropriate encourage the use by the parties of the services of ACAS, judicial or other mediation, or other means of resolving their disputes by agreement.”

Whilst, of course, there are sound policy reasons for Employment Tribunals to adopt such an approach – aimed at encouraging early resolution of cases – the opportunity doesn’t usually present itself until the case management preliminary hearing. By that point parties have crossed the litigation threshold so need as much encouragement as they can get.

The general rule, however, is that the process is entirely voluntary, but if parties indicate an appetite to explore judicial mediation, then a referral is made to the Vice-President of the Employment Tribunal.

If the case gets the green light from the Vice-President and is deemed suitable for judicial mediation, then that can be listed shortly afterwards. This avoids waiting months for a substantive hearing (and Judgment).

The judicial mediation will often be listed for one day. The service is offered free by the Employment Tribunal, and associated costs tend to be modest in comparison with the costs of lengthy confrontational litigation. That is perhaps the main benefit for our clients – who tend not to be wealthy individuals with deep pockets – but equally applies to employers. The process is also flexible and can often make parties feel empowered to create an outcome rather than being limited to the remedies available from the Employment Tribunal.

It is for these reasons, offset also against the downsides of litigation, time, costs, litigation risk, that many of our clients are now opting to explore the potential of judicial mediation.

Whilst there will of course be cases where judicial mediation is not suitable, where the parties are “too far apart” that settlement is not achievable, it is in most, and shouldn’t be ruled out.

​William McParland is an Associate Solicitor with Thompsons.