The Law Society has released a practice note for solicitors giving them guidance on how to deal with mediation before and during the process.
The note should be commended as it is written in plain English, covers issues of use to lawyers and gives some guidance.
However there are concerns which shows the lack of knowledge of mediation within employment lawyers.
As the note points out only a number of cases will come into the catchment area of judicial mediation namely
- A full hearing has been fixed for the substantive issues of at least 3 days in length;
- the case will usually involve at least one element of discrimination although some other complex cases are included;
- the claims are generally single claims, but occasionally judicial mediation can incorporate small multiples (ie two or three claimants);
- there must be no proceedings in other jurisdictions; and
- there must be no insolvency involved.
Fundamentally these are some of the most complex cases involved yet they are being dealt with by an Employment Charirman who is not a full time mediator.
One of the hurdles for promotion of mediation is lack of knowledge of mediation from the parties and a forum of mediation which only deals with a few cases is not going to give significant experience to the parties of mediation.
What is concerning is the information provided is fairly basic.;Lawyers are told to save client costs and clients can attend mediations on their own(Safe?)
There is no guidance on negotiation techniques either before or after the mediation, or whether it is appropriate to reject Judicial mediation, arrange your own mediaton or just go to Tribunal as the whole process could be a waste of time.
The analysis given as to why you should consider mediation is given:
- Judicial mediation could potentially save time and costs because a full merits hearing can be avoided.
- The employment judge is neutral and has no stake in the outcome of the process.
- There is no discussion of the facts of the case in a public court
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- From a respondent's perspective resolving matters via a judicial mediation may enable a satisfactory commercial outcome to be achieved without appearing to have conceded their position.
On the other hand, judicial mediation could increase time and cost if the mediation fails.
There are some key reasons for the parties to consider negotiation training.
What happens if the employment judge discusses the case with a collegage after the mediation?
The case may not be discussed in a public setting, but it is critical that the parties are fully prepared for the mediation or they will be outgunned.
Justin Patten, Employment Solicitor