This is a cross-posted article, originally written on the Pure Employment Law Website and has now been posted here. Please note the date on which this article was posted originally and that any information within may have changed.
25 May 2021
If you’re involved in defending an Employment Tribunal claim, then the Tribunal should normally make you aware that judicial assessment and judicial mediation may be available. However, in our experience, most employers haven’t really come across these terms before and aren’t sure what would be involved. We thought it was time to shed some light!
What are they for?
The numbers of Employment Tribunal claims are increasing – and the Tribunals have a backlog of claims to work through as well. It is therefore in the Tribunals’ interests to try and facilitate as many settlements as possible, to try and minimise the number of cases requiring a final hearing. One of the ways in which they are trying to do that is by encouraging alternative dispute resolution.
In this article, we are going to focus on judicial assessment and judicial mediation in Employment Tribunal matters. Both of these are free services offered by the Employment Tribunals and they both offer the benefit of speed – you could wait well over a year for a case to be decided at a final hearing, whereas judicial assessment or judicial mediation could take place within a matter of weeks.
However, it is important to point out that these are not the only ways that employment claims can be settled. Plenty of cases are resolved via ACAS (whether through early conciliation, or ordinary conciliation) and also Settlement Agreements are often used to finalise agreements between employers and employees (see our page on Settlement Agreements here).
When do they come up?
Depending on which Tribunal you are dealing with, sometimes this information is provided in correspondence, or often it is first raised when a preliminary case management hearing is arranged. Most Employment Tribunals require the parties to complete a standard case management agenda in preparation for the hearing, and the standard agenda asks both parties to confirm whether they think the case is suitable for judicial assessment or judicial mediation, and if so, to say if they are interested in either of those options. So let’s take a look at what both of them involve, how you can tell whether or not your case is suitable, and whether they are worth a try.
Strictly speaking judicial assessment isn’t really a form of alternative dispute resolution at all – but it is something that tends to encourage the parties to settle.
The way it works is that the parties to the case can ask an Employment Judge to look at the case papers and give them an impartial opinion on the strengths and weaknesses of each party’s position. It is an optional, confidential process, and the Employment Judge who carries out the assessment won’t be involved in deciding the case if it does continue to a hearing later on.
Judicial assessment can only happen if both parties agree, and if the Tribunal feels it is a suitable case. The assessment is estimated to take two hours and is conducted by the Employment Judge in private, usually at a fairly early stage in the case. The parties will then be given comments from the Employment Judge after he or she has carried out the assessment. The comments are confidential to the parties and their advisors, and can only be referred to in settlement negotiations, not in any other correspondence or Tribunal hearings. No record of the judicial assessment feedback will be kept on the Tribunal file.
One of the times when judicial assessment can be particularly useful is where your opponent hasn’t had the benefit of legal advice and/or appears to have an unrealistic view of the merits of their case.
However, judicial assessment does have some significant limitations. Often we find that employment cases depend hugely on witness evidence, and obviously judicial assessment can’t take account of any of that because the assessment is based purely on the papers (normally only the claim and the response). Also, Tribunals only tend to offer judicial assessment in the less straightforward cases – an ordinary unfair dismissal claim would not normally qualify.
Another thing to bear in mind is that in judicial assessment, the Employment Judge doesn’t get involved in settlement discussions at all. The parties will be given the judge’s views, and it is then up to them to decide whether they want to make an offer to settle (potentially through ACAS) taking into account what they have been told.
The idea of judicial assessment is to bring in a view from an experienced judge as to the merits or value of a claim – a kind of reality check, if you like. There is however always a risk that it might not be the view you expect – for example, it might make the Claimant feel their claim is worth even more than they previously thought!
Judicial mediation is a much more involved process than judicial assessment. It involves an Employment Judge who has been specially trained as a mediator and works with the parties with the aim of trying to reach a settlement between them. It could potentially be used in a case where there has already been judicial assessment.
A judicial mediation is usually arranged for either a half day or full day, and this is a key difference from judicial assessment in terms of the time commitment (and potential cost). Before the pandemic, judicial mediations always took place ‘in person’, but now many of them are taking place remotely via video (using the Tribunal’s Cloud Video Platform software).
The Employment Tribunal will always insist that there is someone attending the mediation for the Respondent who has sufficient authority to make decisions (rather than having to call someone else for permission) so that is important to bear in mind. That person will not necessarily be someone who would be a witness or involved in the case itself, but they do need to be someone with enough decision-making power.
Like other forms of mediation, one of the attractions of judicial mediation is that it is confidential, encourages creative solutions and is not overly focused on the legal positions of the parties. For example, the mediation might involve things like a reference, an announcement or an apology, none of which are things that an Employment Tribunal has the power to award.
So what makes a case suitable for judicial mediation?
Well, as with judicial assessment, the first thing is that all parties have to be prepared to agree to participate. But even if that is the case, it will still only be offered if the Tribunal feel it is a good use of judicial resources – i.e. the case is complex enough to justify it and they feel there is a realistic prospect of the matter being resolved. If the Claimant is still employed, then the Tribunals often tend to feel that is a factor in favour of judicial mediation as it is often a good way of trying to repair the relationship between the parties.
If the parties are both keen to try judicial mediation, the Tribunal will normally arrange a telephone hearing to discuss the arrangements beforehand. This can include things like details of who will be attending, the preparation of a bundle of documents, and the requirement to provide a Schedule of Loss.
On the day of the judicial mediation, the Employment Judge will allocate the parties to separate rooms (virtual rooms if it is being done remotely) but often will initially bring the parties together in a different room to explain how mediation works and set out what will happen. After that initial meeting the parties will go back to their own rooms and the Employment Judge will shuttle between the rooms, seeking to understand what the parties hope to achieve, managing their expectations where appropriate, and relaying messages between them (with their agreement).
If an agreement to settle is reached, then that will be dealt with by ACAS, who will produce a COT3 settlement agreement (see our article on COT3s here).
Judicial mediation has a good success rate, and is certainly worth considering, but its disadvantages are the time commitment and the potential costs involved (as most judicial mediations involve complex cases, it is usually best to have legal representation present). Members of our team have been involved in a number of judicial mediations, so if it is something you may be interested in exploring, please do get in touch.