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June 2010: Judicial mediation in discrimination cases - does it work?

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Human Law Ezine - June 2010

Judicial mediation on discrimination cases – does it work?

If an employee brings an Employment Tribunal claim against you, their employer, you may be forgiven for thinking that a Court case, significant legal expenses and time consuming case preparation are inevitable. Back in 2006, however the Government introduced a pilot to use mediation to try and reduce the costs of Employment Tribunals in this country. This so called ‘Judicial Mediation,’ where the Chairman of an Employment Tribunal offers a mediation service, was provided for cases involving discrimination.

The aim of the pilot was to see the extent to which judicial mediation was able to resolve these cases without the need for a formal hearing and whether this resulted in a lower cost to the Employment Tribunal Service and if this had benefits for claimants and employers, both in terms of outcomes and improved process.

Earlier this year a study was published which reported on the findings of the trial of judicial mediation in three pilot regions, Newcastle, Central London and Birmingham. The study reports popularity of various forms of alternative dispute resolution amongst the parties to a dispute - “The empowering and flexible nature of the process, in contrast to the process of litigation, was highly valued by those involved”, it says.

But if you’re an employer facing an Employment Tribunal case what are the pros and cons of using judicial mediation?

Pros

  1. It is free. One of the great things about judicial mediation if you can get one is that it is free. In the normal course when you instruct a mediator it is a paid service.
     

  2. It has a fairly high satisfaction rate. Users have asserted that judicial mediation was well received and received positive feedback in terms of the process.
     

  3. It gives you the chance to have your day in court. Not something we’d necessarily encourage as an approach or attitude but as a judicial mediation is done by a Tribunal Chairmen it means a Judge is actually hearing your case.
     

  4. Even if the mediation fails your lawyer will develop a wider understanding of the case. One of the benefits of judicial mediation is that you and your lawyer are getting the parties together and the way the mediation process unfolds means that you acquire useful knowledge of your case.
     

  5. You can save cost again by using a venue provided by the Employment Tribunal.

Cons

  1. It is often poorly administered. According to research at the Ministry of Justice, there are real problems in arranging the mediation. “Negative perceptions of the process tended to centre on the organisation of the mediation process, with communication felt to be a particular problem. Some participants (especially claimants) seemed to have unrealistic expectations of the process.” The benefit of using an independent mediator such as Human Law Mediation is that we are very efficient in getting the mediation to take place when you want rather than in line with bureaucratic timetables. You’ll also have direct lines of communication to the mediator and not have to go through Court staff.
     

  2. Statistically, it adds limited value to the process. There was no statistically significant effect identified for the impact of judicial mediation on the:

    a. rates of cases settled within a set time period;
    b. rate of resolution that avoided a hearing;
    c. overall levels of satisfaction of claimants or employers.

    As a consequence you do have to ask yourself if the parties are getting some benefit in going through judicial mediation. These figures compare unfavourably to the high satisfaction rates which most mediation providers give.
     

  3. Quality control of mediator is erratic. The judicial mediation process relied heavily on the interpersonal and facilitation skills of the member of the judiciary acting as mediator. Judicial Mediators are primarily trained Tribunal Chairmen so they do not have the experience of a professional mediator. As a consequence there must be doubt over quality.
     

  4. You lack control of the process. With respect to a judicial mediation you are limited in determining when the mediation will take place. One of the great things about arranging a mediation with a provider is that you have much more flexibility over the timing of arranging a mediation and it can take place at a time which works for all the parties rather than being convenient for the Tribunal system.
     

  5. You have limited opportunities to use Judicial Mediation. Judicial Mediation has only been used in three Tribunal jurisdictions and only within discrimination claims. As a consequence the opportunities to use judicial mediation remain limited. The appeal of instructing a mediation provider is that it does not matter if you have an Employment Tribunal claim or not and your case has been selected for judicial mediation, you can use mediation whenever you want.

Conclusions

If anything you could argue the pilot into judicial mediation has reinforced the benefits of using an independent mediator. Judicial mediation using the Court system brings with it the bureaucracy you can so easily avoid if you and your employee agree to use an independent mediator but is does reinforce the importance of using an experienced mediator, skilled and qualified to conduct employment mediations.

A full copy of the Ministry of Justice report on the pilot into judicial mediations can be found here.

To discuss the use of mediation in discrimination and other employment disputes call Human Law Mediation on 0844 800 3249 or email Justin Patten here.

 
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Justin Patten
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Testimonial

"I would like to take this opportunity to express my complete satisfaction in that which took place in our recent mediation. The whole procedure was conducted in a civilised, appropriate manner in which all were allowed to explain the various problems that had taken place . I would strongly recommend all to take this more easier route to a solution."
T.A.C. Page, A.W. Page (Upholsterers) Ltd
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