Judicial mediation a ‘shortcut’ to dispute resolution

The average time from receipt of an Employment Tribunal Claim to a first hearing is currently 335 days for claims made by a single employee according to the most recent Ministry of Justice figures. And that might just be a preliminary hearing. To address the problem, judges are now prioritising judicial mediation hearings. We’ll hear more about that. 

As we highlighted last week, there are many reasons for the delays. They include too few judges, a high turnover of staff in many regional offices, a significant understaffing in many of the regions and, not least, the process of migration to a modern online tribunal system, which is still a work in progress.

In an effort to address the backlog of cases, employment judges are actively encouraging lawyers to talk to their clients about judicial mediation, reminding them it's cost-free and relatively quick alternative to litigation. Practitioners have been told to expect to be challenged by judges in case management discussions to explain why the client is set on pursuing litigation and to consider carefully whether the adversarial route is really necessary. If the parties agree, and the case is suitable for judicial mediation, that choice will help them jump the queue.

So, let’s hear more about that. Rebecca Sulley is one of the team of lawyers based in Birmingham. Earlier she joined me by video-link to discuss the delays in the system and judicial mediation as means to get an early resolution:

Rebecca Sulley: “Yes, so 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: “Any other benefits you can think of, Becci?” 

Rebecca Sulley: “The benefit of mediation is that you can generally put all your directions on hold to avoid incurring those costs and tribunals will try and get a mediation in the diary relatively quickly. What you will need to have is a call with the tribunal for them to agree whether or not mediation is worthwhile and likely to succeed but, in many cases it will be. So, that does help in that you can get a mediation listed a lot sooner than your actual hearing to try and get a resolution to the case.”

Joe Glavina: “Of course there are two options when it comes to mediation – judicial mediation with a judge or private mediation.  What's the split generally, and which proves to be more popular and more successful? “

Rebecca Sulley; “Largely judicial mediation is preferred and I think the reason for that is that claimants don't feel that there's a lack of independence if you go to a judge and, although they're not meant to give their view on the prospects of a case, they can obviously steer a claimant into what they would need to show at tribunal and how their case might come out- and, also, in terms of what likely awards there are going to be, and we find claimants, especially those in person, are a lot more likely to listen to a judge who would ultimately be deciding their case than they would be to a private independent mediator.”

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. If you’d like to know more about that you can – the latest news about it is in the employment tribunals section of the Senior President of Tribunals Annual Report 2022. We have put a link to that in the transcript of this programme.

LINKS
- Link to Senior President of Tribunals Annual Report 2022