Employment Law: Judicial Mediation | May 2021

Employment Law: Judicial Mediation | May 2021

Recent headlines have declared that there is a backlog of nearly 50,000 Employment Tribunals - a number which will continue to grow steadily especially with the end of the Furlough scheme. The latest HR and Employment Law topics show an increased focus on the use of Judicial Mediation as an alternative to waiting until 2022 for a 4-day hearing at a full Employment Tribunal.

The following Employment Law update provides a brief overview of what exactly Judicial Mediation is and some key points to note.

So, what is it?

Judicial Mediation is a process in the Employment Tribunal where the Claimant and Respondent sit down with a judicial mediator and try reach an agreement to resolve the case.

It is a voluntary and confidential process that allows parties to explore whether they can resolve the case, without infringing on their rights to take the case forward or defend the case at the end of the mediation if agreement cannot be reached.

What can you expect?

The mediation will be conducted by a judge mediator who also works as an Employment Tribunal judge. There role is to facilitate mediation to allow both parties to agree a suitable outcome and not judge the merits of the case. It is attended by both sides and this can be with or without legal representation. The judge will ask questions so they can understand what has happened in the case so far and the type of resolution each party would like.

The mediator will not give legal advice to either party. The only exception to this is if either party does not have legal representation, then they may explain legal terms when necessary.

It is important, prior to the mediation, for both parties to consider what a satisfactory outcome would look like well in advance of the day - this can include non-financial outcomes.

If the mediation does not result in an agreement, it will have no effect on a claim at Tribunal. The claim will proceed to a final hearing as if the mediation had never happened. The mediator will not be involved in any future hearings and everything that is discussed in mediation is confidential.

However, should agreement be reached by both parties, then both will need to sign a contract to make that agreement legally binding. If they are legally represented, the Respondent might have a ‘COT3’ ready to sign on the day. If it is clear that both parties have an agreement in principle, then contacting ACAS to finalise a COT3/contract may be the most suitable way forward. ACAS may be able to talk both parties through what the agreement means although they cannot advise either party.

Once signed and completed, this then means that either party cannot share what was discussed at the mediation with work colleagues, friends, the press/media or on social media.

NB: This information is for general guidance only and is not legal advice. It should not be regarded or relied upon as a complete or authoritative statement of the law. However, if you have any HR issues on this or any other HR matters and would like to talk them through with our team, please don't hesitate to contact us.

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