Employment tribunals: meditating on mediation

The participating employment tribunals will identify cases which are potentially suitable for judicial mediation. The case must be either a race, sex or disability discrimination claim (equal pay claims are also eligible in Newcastle) and may well involve an ongoing employment relationship. The parties must then indicate whether they would be interested and, if so, the regional employment tribunal chairman determines whether judicial mediation should be offered.

As in other mediations, the judicial mediation process will be private, confidential and without prejudice. It will be based on a facilitative technique and so the focus will be on assisting the parties in resolving the dispute rather than on the merits of the case. More importantly, resolution is not limited to the remedies available at any employment tribunal hearing, which, in practice, tend to be limited to financial compensation.

The difference with judicial mediation is that the mediator is an employment tribunal chairman who has been specially trained in mediation techniques. Although the employment tribunal chairmen will have to put their traditional judicial approach aside, a potential advantage of the scheme is the extent to which they will nevertheless be able to use their vast experience of hearing employment tribunal disputes to good effect in their mediation style. Of course, an employment tribunal chairman who has been involved in mediating a particular case is precluded from any further involvement should the matter proceed to a employment tribunal hearing.

While mediating workplace and employment disputes is becoming increasingly common, only a minority of organisations use mediation, whether at an early stage in a dispute or after employment tribunal proceedings have been issued. There are several advantages to the new judicial mediation scheme which are likely to result in more mediations. The very fact that the scheme is under the official auspices of the employment tribunal may encourage parties to participate. Certainly, if one party indicates a willingness to mediate, the other may feel at a disadvantage in front of the employment tribunal if they unreasonably refuse to come to the table.

The process is free and any case management orders, such as orders for disclosure and exchange of witness statements, will typically be stayed during the judicial mediation. This is in contrast with an ordinary mediation, where the costs can be significant (albeit less than proceeding to a employment tribunal hearing) and there is no formal mechanism for staying the employment tribunal proceedings so preparations for the employment tribunal hearing such as disclosure and preparing witness statements must be continued (and costs incurred) in parallel with the mediation process.

The parties will enter into a mediation agreement which makes it clear that there is no obligation to consent to mediation and either party can bring the process to an end at any time (see article by Goolam Meeran, President of the Employment Tribunals, Summer 2006 issue of "Tribunals", www.jsboard.co.uk/downloads/jsb_tribunals_summer_2006_web.pdf). This factor alone makes it likely that the judicial mediation pilot will be much more successful than the Advisory Conciliation and Arbitration Service (ACAS) arbitration scheme.

The ACAS arbitration scheme was also introduced as an alternative to an employment tribunal hearing and with a view to reducing the employment tribunals' caseload by providing a speedy, private and informal arbitration of certain claims. The arbitrator decides the case on its merits and this judgment is binding on both parties. With no way of evaluating how the arbitrator will come to his binding judgment and no real right of appeal, the take-up was disappointingly low, with only a handful of cases a year.

A long-established mechanism for alternative dispute resolution in employment disputes already exists in the form of conciliation by ACAS. ACAS is completely independent from the employment tribunals and has a statutory power to conciliate the vast majority of employment tribunal cases (section 18, Employment Tribunals Act 1996).

The Employment Tribunal Service has made it clear that it has been working closely with ACAS in developing this pilot scheme and that judicial mediation is in addition, rather than an alternative to, ACAS conciliation. The employment tribunal chairman may contact ACAS to reactivate conciliation either during or at the end of the judicial mediation process.

The pilot scheme will run for a period of six to 12 months, during which the scheme will be subject to independent research to assess the impact of judicial mediation on discrimination claims and whether it has reduced the number of cases being heard by employment tribunals.

At the very least, it is likely that judicial mediation will result in earlier settlement of those cases which would otherwise settle at the door of the employment tribunal or even part-way through a hearing, and this alone should have some impact on the employment tribunals' caseload.

However, one of the other motives for introducing the scheme appears to be a desire to preserve ongoing employment relationships which would otherwise not survive protracted and complex discrimination litigation. Anecdotal evidence suggests that mediated settlements of these types of discrimination claims typically involve bringing any ongoing employment relationship to an end, and so it is perhaps rather optimistic to expect that this scheme will change this.