Private or judicial? Richard Kay considers the options.
In 2006 a pilot judicial mediation scheme was introduced and then fully implemented within the tribunal system.
Judicial mediation has become an option for certain tribunal cases, with the principal criteria being that a case has been, or is likely to be, listed for at least three days, and that the case involves some element of discrimination (there are certain other complex cases which also fulfil the criteria).
Private mediation is an option in any employment case, but it tends to be more costly. In general, the guidelines for approving a case for judicial mediation provide sound instruction when advising a client whether to consider private mediation. Mediation is unlikely to be suitable for a simple unfair dismissal case. The time, cost and effort involved will rarely be worthwhile and often disproportionate to the claim.
Mediation can be particularly useful in cases where the claimant remains employed by the respondent. Even if the facts surrounding the discrimination are fairly narrow, there is still the ‘elephant in the room’ of the continuing relationship between employer and employee.
A mediation can be useful either to bring the parties to an understanding where they can continue their working relationship, or, far more likely and perhaps regrettably, in coming to terms with a clean break agreement. (If anyone has had experience of a claimant and respondent skipping off together into the sunset after a mediation then it would be great to hear about it.)
Another advantage of mediation is that it can provide claimants (and to a lesser degree respondents) with an opportunity to express their views about the case without the need for the stresses and costs of a full tribunal. People can sometimes have a romanticised view of tribunal hearings and feel that it will be a rewarding and cathartic process. The reality is often different and sometimes this only crystallises on the eve of the tribunal or when the tribunal has commenced.
While mediations can sometimes save time and costs, they can also add to them. A mediation is usually a full day, which will involve more costs from the representatives for their attendance and preparation. It is also time-consuming for the parties. Respondents in particular may be reluctant to lose one or more key individuals from their business for a full day.
If the matter does not settle at the mediation, then this can be particularly frustrating. Even if it does, in most circumstances a settlement negotiated over the telephone either through the solicitors or ACAS will clearly be cheaper and less time-consuming.
In advising a client whether to take part in a mediation, a solicitor should be confident that either: the matter would not settle without it; the matter would not settle to the client’s satisfaction without it; or that the increase or decrease in settlement monies resulting from the mediation might be sufficient to justify the time and expense.
Private mediations have a number of potential advantages over judicial mediation. The main advantage is flexibility. Parties are more likely to be able to agree a date that suits them, rather than wait for the tribunal to consider the matter for mediation (usually at a preliminary hearing) and list the matter at a date that the tribunal and the relevant judge conducting the mediation can accommodate.
There is also flexibility over choice of mediator. There are some excellent private mediators and solicitors can rely on reputations, opinions of colleagues and at the very least a review of a CV.
Judicial mediators tend to be more variable. Bad experiences have included either an insistence on technical legal points being made and repeated by representatives, and what amounted to a simple exchange of settlement numbers which could just as well have been achieved over the telephone.
Some judicial mediators are very good. Because they are judges, they also carry the added bonus both that a party can feel that they have had an opportunity to put their case to a judge without having to go through a tribunal (usually more of an advantage in the case of claimants, but some respondent representatives can be equally passionate), and that they can often temper parties’ expectations in a way that even the most convincing of lawyers is not able to do.
On a purely mercenary note, a judicial mediation tends to be cheaper.
What to look for
A good mediator will be sympathetic and empathetic to both sides, but not to the extent that it polarises the parties. They will allow parties to express their emotions and frustrations, but not to the level where it derails the mediation process. They will allow points and representations to be made, but avoid the mediation becoming a mock tribunal. They will keep parties focused on the task in hand and play devil’s advocate sufficiently to make parties move towards a resolution.
Preparing a client
Solicitors and barristers will be well versed in preparing a client for the witness stand (turn off your phone, answer the question asked and so on). Preparing a client for mediation is equally important. After a client takes the witness stand a representative can only do so much. In a mediation, the solicitor will have constant interaction with a client and it is important a client feels trust in their representative.
A solicitor should also prepare the client for the process, in particular for seeing and potentially interacting with individuals for whom they may feel deep resentment.
Perhaps most important is managing a client’s expectations. A common sentiment often rehearsed by judicial mediators is that neither party will be happy with a result of the mediation, but hopefully it will be something that both parties can live with. While this is not always true, it is a good principle for a solicitor to prepare their client in advance for this possibility.
Finally, a solicitor should be prepared for the aftermath of a ‘successful’ mediation, particularly in the case of claimants. While a client may seem content with an agreement, after the adrenalin and reality check of a mediation wears off a client can experience regret at their decision to settle. It has even been known for clients to attempt to alter agreements after signature.
It is important therefore that a solicitor ensures a client fully understands what they are agreeing to, and is prepared regardless for a frustrated call or email after the event.
Richard Kay is a senior solicitor at DWF