Judicial assessment and mediation launched in Northern Ireland

Judicial assessment and judicial mediation have been launched in Northern Ireland. The Office of the Industrial Tribunals and Fair Employment Tribunal has announced that both schemes became operative on 31 March and means Northern Ireland is now in line with the rest of the United Kingdom with employers will be able to pursue mediation to resolve their disputes. Both judicial assessment and mediation has been available in employment tribunals in Great Britain for many years but for various reasons were never implemented in Northern Ireland, until now. 

Judicial assessment is the scheme whereby an Employment Judges gives an assessment of the strengths and weaknesses of each party’s case at an early stage and will often give an indication to the parties of the likely outcome. In GB the scheme has been rarely used so we don’t expect a big take up in Northern Ireland. Judicial mediation is entirely different and involves the judge acting as a mediator to help the parties try to reach a settlement. It’s used in cases deemed to be suitable where both parties agree to the process. Judicial mediation has been quite popular, especially in the last two or three years as the backlog in the tribunal system has worsened with ever longer delays. 

On waiting times, the most recent meeting of the National Employment Tribunal User Group paints the picture for the UK. The position appears to be:

There are significant variations between regions in the waiting time for listed cases. The longest delays are in Reading, Watford, London South, London East and the North West, where cases of 6-10 days duration are being listed into 2024. In a few regions in England and Wales - Midlands East and North East are examples - a 1-2 day case is listed to be heard within four months, although the wait is many months longer in a number of other regions. Why the variation between regions? The President says it’s chiefly due to the imbalance of judicial resources between regions, although this is mitigated to a degree by the success of fully remote hearings allowing cases to proceed when they would otherwise have been postponed. 

So, let’s hear more on the delays and judicial mediation as an alternative to litigating. Rebecca Sulley is one of the team of lawyers based in Birmingham. Earlier she joined me by video-link to discuss it:

Rebecca Sulley: “There are still a large number of delays in the tribunal system largely because they're short staffed both administratively and also judicially, as well. So, we're seeing some of the biggest delays remain in London and a lot of cases we're finding three-day hearings not being listed until the summer of 2024, which is obviously quite a long way away. Some of the Midlands tribunals are a bit quicker in terms of their listing for summer 2023 but there are still quite a lot of delays and what we're finding is the tribunal are saying, to try and help avoid further delays, is not to make unnecessary applications. So, if it's something you can discuss and agree between the parties, then that's preferable to asking the Tribunal to make an order. They are also saying that if you are making an application that's bound to fail, then that will obviously be frowned upon by the tribunal and we are finding judges are writing back quite robustly. So, it's really the case that you need to think carefully about whether this is something you should be writing to the tribunal about, or whether you should try and go to the other side to agree something directly. The other point I would just make is that the tribunals are saying that they are prioritising mediation. So, if mediation is something that you think you be interested in for your case, then it is certainly worth making that clear in the title of any email that you wrote to the tribunal because they are looking out for those emails to try and avoid time in hearing.”

Joe Glavina: “Given the huge backlog are you finding clients are more prepared to give mediation a try and so jump the queue and get their case settled?” 

Rebecca Sulley: “Yes, we are absolutely finding that. So, what we're finding is twofold. So, the tribunals are really encouraging settlement, they're pushing judicial mediation, some tribunals have mandatory ADR, which is really a last ditch attempt to try and get the parties to settle, but we are also finding a lot of clients are concerned that witnesses will have forgotten by the time two years rolls by, they will have forgotten what happened and therefore the evidence might suffer and, of course, there's still turnover of staff. So, we're finding a lot of witnesses have left by the time the hearing takes place and are often not willing to give evidence. So, that really is forcing a lot of clients to reconsider their position on fighting the tribunal.”

Joe Glavina: “Final question, Becci. Are these judicial mediation hearings taking place, online or in person? Or is it a mix?”

Rebecca Sulley: “Judicial mediations are largely taking place online still, which can be slightly challenging because it means the parties are waiting in online waiting rooms. At the start of the hearing all the parties will be joined together. Sometimes it'll be by telephone, though, so you won't actually see people face to face, but largely it is by video, and then the judge will take turns going to private rooms. So, it can be a bit difficult to manage on the day because, quite often, there's a lot of logging out of the CVP and then logging back in again when the judge says that they're ready. So, it's certainly not as smooth, but I think the tendency is to keep that online for now because it just saves all the parties having to attend the tribunal itself.”
Becci mentioned how tribunals are moving online. This is the HMCTS reform that aims to take the longstanding paper-based processes and make them digital. So, instead of sending and receiving letters and emails to and from our various regional offices and hearing centres, parties and their representatives will access their case information through a portal designed for that purpose. The minutes of that National Employment Tribunal User Group does give an update on the reforms and says they expect a full roll out by the spring of 2023. That prediction was made back in September so we do expect it very soon. We’ve put a link to the minutes in the transcript of this programme.

LINKS
- Link to minutes of meeting of the National Employment Tribunal User Group (for September 2022)