Judicial Mediation: what does it entail and is it worth it?

Fiona Gorry
Head of Litigation
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If you’ve had a complex tribunal claim submitted against your business (for example a discrimination complaint or a whistleblowing case) and a full hearing has been set for three days or more to determine the merits of the case, there is a good chance you will be offered the opportunity to participate in Judicial Mediation.

What does Judicial Mediation entail?

Judicial Mediation is essentially an alternative form of dispute resolution, with the focus being on trying to reach a settlement and/or progressing settlement discussions. It is a voluntary process, and both parties must be keen and willing to participate before the tribunal will consider offering it. Judicial Mediation is not offered in every case, it is reserved for complex cases which are likely to be listed for a full hearing of three days or more.

If parties express an interest in Judicial Mediation, a case management hearing will be arranged to identify a suitable date for the mediation to take place. Ordinarily, mediation sessions are scheduled for a full day.  They can take place in person or remotely, via video link. The Judge conducting the case management hearing will need to know that decision-makers with authority to make decisions on the day will be present at the mediation in person, so parties should make sure they attend with details of those individuals, their job titles and their availability in the coming weeks.

Judicial Mediation is facilitated by an employment judge. At the start of the mediation, both parties usually appear before the judge before going to separate tribunal rooms. The employment judge will identify the key issues in the case and will then endeavour to develop settlement negotiations, taking views from each party and then relaying that information to the other party for their comments and consideration.

The judge will not make decisions for the parties, impose solutions, give advice or hear evidence. The aim is to help parties reach their own solution by managing the process in a fair and constructive manner, making sure that they understand the process and helping them to focus on areas of agreement.

If the mediation is successful, the settlement will include a withdrawal and dismissal of the tribunal proceedings. It is helpful for parties to let Acas know in advance of the mediation that it is taking place and that you envisage requiring their support to draw up the COT3 in the event an agreement is reached.

Is it worth it?

In a nutshell, yes. In our experience, Judicial Mediation can be extremely helpful in focusing minds and moving settlement discussions along thus potentially avoiding the costs of a lengthy tribunal hearing.

If you would like to discuss Judicial Mediation further, or if we can provide support or assistance on any other employment law matter, please do not hesitate to contact a member of the team on 0141 331 5150

Topics: Employment Tribunal, Judicial mediation, Litigation