29th June, 2022

Mediation - and how to Jump the Employment Tribunal Queue!

Rachael Levene offers her views on Mediation and why it is an essential part of any Employment Lawyer’s toolkit...

What is Mediation?

Mediation is a form of Alternative Dispute Resolution. It allows the parties to discuss their wants and needs in a confidential manner in front of a Mediator.  The Mediator is neutral and impartial and does not judge or arbitrate the dispute.  The Mediator will use their skill to find common ground between the parties.  The aim of any mediation is to help the parties reach a solution that they can accept, and so settle the dispute.

Why Mediate?

Mediation allows parties to reach their own result. This can be any solution that they see fit.  The process allows for creative outcomes, that are outside the jurisdiction of the court system.  Mediation can also be undertaken at any time. If mediation occurs early in the litigation journey, it has the potential to avoid significant litigation costs.  Money aside, settlement has the obvious benefits of avoiding a stressful court process and a risk of losing.

Mediation in the Employment Tribunal

Employment Tribunals offer a judicial mediation scheme.  This started as a pilot in 2006 and is now available throughout England and Wales. It has been reported that 65% of cases mediated reach a successful settlement on the day of mediation. To use this service, both parties have to be willing to mediate. If so, the Regional Employment Judge then considers whether to make an offer of judicial mediation.

Using Mediation in Employment Disputes outside Judicial Mediation

The availability of judicial mediation in Employment Tribunals can sometimes mean that other mediation avenues are not appreciated and not explored.  Where there is a desire to settle, the use of private mediation with a trained mediator can be hugely worthwhile.

As any current user of the Employment Tribunals knows, the system is extremely busy. As a result, an offer of judicial mediation might lie many months ahead, by which stage parties will be expected to have met various Tribunal deadlines - and their lawyers’ associated invoices. A private mediator can be engaged at any time, and so support finding a solution early in the litigation process.

Cases that might be especially suited to early mediation, or private mediation more generally, include:

  • Cases of a complex and historic nature where the length of hearing is likely to be many days or weeks, making the costs of mediation and early resolution very attractive;
  • Cases involving persons with medical issues where the litigation process exacerbates their condition;
  • Cases where there is an ongoing employment relationship and a desire to keep that relationship going;
  • Cases that require a solution that the Employment Tribunal cannot provide.  As we all know, Employment Tribunals do not have the power to address the more ‘human dimensions’ that are often so important to those involved in litigation;
  • Cases that require a skilled mediator to create a calm and safe space before settlement is possible. This might be in a situation where emotions run high;
  • Cases where a party still wants to feel heard in the settlement process. A mediator should listen and be empathetic whilst remaining neutral;
  • Cases where there is an unwillingness to recognise litigation risk.  A mediator can sensitively ‘reality test’ a position and help a party to acknowledge weaknesses;
  • Cases where an offer of judicial mediation is not given by the Employment Tribunal, but the parties still wish to mediate.

Why use the 9SJS Mediation Group for your mediation?

9 St John Street has one of the largest groups of specialist accredited mediators in the North of England. Rachael Levene, together with a number her colleagues in the Employment Team, are all trained mediators who are members of the 9 SJS Mediation Group.

Their experience of routinely acting for Claimants and Respondents in the Employment Tribunal means that they are ideally placed to understand all the legal angles, as well as the commercial and personal nuances that affect individuals and large employers involved in Employment Dispute.  They can offer a complete mediation service to help the parties resolve those disputes without the delay which the Tribunal process so often entails.

For those interested in instructing Rachael or her colleagues, please contact the 9 St John Street Employment Team clerks: julia.lanza@9sjs.comjane.slingsby@9sjs.com or alex.jones@9sjs.com

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