Judicial Mediation in Employment Disputes

[IanA2]

Does anyone have experience of this, either professionally or personally?

Whilst it seems to be a comparatively pain free path which I understand is not binding, the bit that worries me is that nothing used in the meeting can be used in the hearing should resolution not be achieved.

Perhaps I'm worrying about nothing, but if I've understood it properly, it's a bit like showing a good card hand and then not being able to play it.

I know absolutely zip about this and would be very grateful for informed opinions.

See: http://www.justice.gov.uk/downloads/tribunals/empl...

It's sentence two in paragraph five that worries me.

Thanks.

[HoHoHo]

Are you an employer or employee and has the tribunal process started?

[IanA2]

HoHoHo said:

Are you an employer or employee and has the tribunal process started?

It is in relation to an employee and although the process is in part underway there may be an opportunity to go for JM.

[HoHoHo]

My experience doesn't include JM but I have experience of a tribunal up to the court date where the contractor (yes, contractor) pulled out and got what he deserved.

I was told in our case that regardless of the fact we had done nothing wrong, any mediation would be seen as a point in our favour come the day of ruling should it get that far.

I could write until my fingers dropped off our experience as an employer but would say go for it, you have little to lose bearing in mind the law is still heavily weighted on the employees side.

The problem is the system is flawed and until that is resolved (and also no win no fee lawn firms are abolished) you have to go through the motions.

I'm out of the country until Tuesday but happy to share my experience over the phone when I'm back if that would help?

[Chrisgr31]

I think you'll find that going through the mediation process gets brownie points in court. Also I think you need to show your hand before any court proceedings as well.

Reality is you are almost certainly going to have to pay something out just to get the problem to go away, and mediation might be the cheapest way of getting to that position!

As regards Hohoho and his comment about no win no fee lawyers I understand his point, but at the same time not many people can afford lawyers fees even if they have a watertight case. What we need to do is get rid of the unscrupulous lawyers who will take on any case on the basis that its likely that the other party will pay something just to get the case to go away.

[IanA2]

I understand that the case is essentially "open" prior to the actual tribunal and that it is the Judge's job to test it.

What I don't understand is the bit about not using what said in JM in the "trial" should JM fail.

[HoHoHo]

Chrisgr31 said:

I think you'll find that going through the mediation process gets brownie points in court. Also I think you need to show your hand before any court proceedings as well.

Reality is you are almost certainly going to have to pay something out just to get the problem to go away, and mediation might be the cheapest way of getting to that position!

As regards Hohoho and his comment about no win no fee lawyers I understand his point, but at the same time not many people can afford lawyers fees even if they have a watertight case. What we need to do is get rid of the unscrupulous lawyers who will take on any case on the basis that its likely that the other party will pay something just to get the case to go away.

I think there needs to be close scrutiny of any employment claim prior to lawyers being involved and tribunal proceedings starting. As you say, unfortunately most lawyers are aware that some employers will cough up regardless just to move on and that needs to stop.

In our case I was determined to go through right to the end, we had 4 witnesses, 200 pages of evidence against his 4 (basically his contract and a couple of invoices for work done since we ended his contract. By the way, did I mention we were taken to a tribunal by a contractor who's contract we ended and he did it simply out of spite?

[Lurking Lawyer]

IanA2 said:

I understand that the case is essentially "open" prior to the actual tribunal and that it is the Judge's job to test it.

What I don't understand is the bit about not using what said in JM in the "trial" should JM fail.

What I suspect it means is that concessions and discussions during negotiations can't be referred to if the matter fails to settle and continues to a hearing. I don't do employment work but that's how it works in commercial mediation.

Your legal arguments are what they are, and you're not precluded from running them at a hearing if the mediation fails.

There is always an element of "showing your hand" but that's not a reason to decline to mediate. If what you're talking about is disclosing your evidence and legal arguments, you would in any event have to make clear to the other side well in advance of a final hearing how you intend to put your case.

[IanA2]

Lurking Lawyer said:

IanA2 said:

I understand that the case is essentially "open" prior to the actual tribunal and that it is the Judge's job to test it.

What I don't understand is the bit about not using what said in JM in the "trial" should JM fail.

What I suspect it means is that concessions and discussions during negotiations can't be referred to if the matter fails to settle and continues to a hearing. I don't do employment work but that's how it works in commercial mediation.

Your legal arguments are what they are, and you're not precluded from running them at a hearing if the mediation fails.

There is always an element of "showing your hand" but that's not a reason to decline to mediate. If what you're talking about is disclosing your evidence and legal arguments, you would in any event have to make clear to the other side well in advance of a final hearing how you intend to put your case.

Thanks that makes sense, so it's really about, for example, a tentative offer made by one side, not being alluded to in the open session. Have I got that right?

[HoHoHo]

Lurking Lawyer said:

IanA2 said:

I understand that the case is essentially "open" prior to the actual tribunal and that it is the Judge's job to test it.

What I don't understand is the bit about not using what said in JM in the "trial" should JM fail.

What I suspect it means is that concessions and discussions during negotiations can't be referred to if the matter fails to settle and continues to a hearing. I don't do employment work but that's how it works in commercial mediation.

Your legal arguments are what they are, and you're not precluded from running them at a hearing if the mediation fails.

There is always an element of "showing your hand" but that's not a reason to decline to mediate. If what you're talking about is disclosing your evidence and legal arguments, you would in any event have to make clear to the other side well in advance of a final hearing how you intend to put your case.

That's a very good point, if you have a good solid case, if nothing else the employee will become aware he's in a weak position and may withdraw his claim. Alternatively you'll find out if your case is weak and it will give you an opportunity to settle sooner rather than later.

We tried to mediate through ACAS ( as you are suppose to do) for reasons best known to them they were no help whatsoever.

[Jasandjules]

IanA2 said:

Does anyone have experience of this, either professionally or personally?

I tend to undertake mediations rather than judicial mediations. My reasoning is that with judicial mediation (not all!) some parties think it is a chance to run their case and see what their prospects of success are. This just leads to the parties arguing and not actually settling which is after all the point of a mediation.

This is also why my mediation position paper is always drafted in fairly neutral terms.

In terms of showing your hand, yes, you can give up some arguments but you don't need to disclose all of them by any means, as I said above I prefer not to engage in lengthy legal disputes in a mediation (I've made one exception when the other side was clueless as to the law so I simply asked her how she would get around a rather fundamental flaw in her case and after that the offers became more reasonable)..

And what is said at mediation is without prejudice - i.e. the same discussions that can be had in without prejudice discussions in writing. So offers made and so on can not be put before the Tribunal and any information given up by the parties which they otherwise would not want the Tribunal to see or know of.

It can be wiser to use a lawyer for such matters, especially when you want a clearly drafted (and reasoned) Schedule of Loss to argue over.

[IanA2]

Jasandjules said:

IanA2 said:

Does anyone have experience of this, either professionally or personally?

I tend to undertake mediations rather than judicial mediations. My reasoning is that with judicial mediation (not all!) some parties think it is a chance to run their case and see what their prospects of success are. This just leads to the parties arguing and not actually settling which is after all the point of a mediation.

This is also why my mediation position paper is always drafted in fairly neutral terms.

In terms of showing your hand, yes, you can give up some arguments but you don't need to disclose all of them by any means, as I said above I prefer not to engage in lengthy legal disputes in a mediation (I've made one exception when the other side was clueless as to the law so I simply asked her how she would get around a rather fundamental flaw in her case and after that the offers became more reasonable)..

And what is said at mediation is without prejudice - i.e. the same discussions that can be had in without prejudice discussions in writing. So offers made and so on can not be put before the Tribunal and any information given up by the parties which they otherwise would not want the Tribunal to see or know of.

It can be wiser to use a lawyer for such matters, especially when you want a clearly drafted (and reasoned) Schedule of Loss to argue over.

That's the bit that worries me. A smart operator concerned about something that might be uncovered in cross examination, might offer it up it JM thereby neutralising a good aspect of the case. Or am I overthinking this?

ETA: The other side are represented by cunning street fighting thugs. They've already pulled some really dirty moves.

[anonymous-user]

You are misreading the document, OP. You are not prevented from advancing factual or legal points mentioned at the mediation. The mediation isn't for arguing the case anyway, but the restriction simply means that what was said at the mediation can't be disclosed later. Parties can make concessions, make offers etc and not have these relied on later. This doesn't mean that the parties can't put their cases at a later hearing.

Judicial mediation is, however usually a waste of time, as the Judges are reluctant to take an active mediator role. If you want to mediate, far better to hire a proper mediator.

[IanA2]

Breadvan72 said:

You are misreading the document, OP. You are not prevented from advancing factual or legal points mentioned at the mediation. The mediation isn't for arguing the case anyway, but the restriction simply means that what was said at the mediation can't be disclosed later. Parties can make concessions, make offers etc and not have these relied on later. This doesn't mean that the parties can't put their cases at a later hearing.

Judicial mediation is, however usually a waste of time, as the Judges are reluctant to take an active mediator role. If you want to mediate, far better to hire a proper mediator.

Thanks for that. To be clear then, if they concede a fact in JM, that they have previously concealed, that can be used at a later hearing.

[mph1977]

Breadvan72 said:

You are misreading the document, OP. You are not prevented from advancing factual or legal points mentioned at the mediation. The mediation isn't for arguing the case anyway, but the restriction simply means that what was said at the mediation can't be disclosed later. Parties can make concessions, make offers etc and not have these relied on later. This doesn't mean that the parties can't put their cases at a later hearing.

Judicial mediation is, however usually a waste of time, as the Judges are reluctant to take an active mediator role. If you want to mediate, far better to hire a proper mediator.

i think Breadvan has hit the nail on the head

this sounds a little bit like what the Health professional regulators call 'consensual panel determination' for fitness to practice / practitioner impaired by health reasons cases - key difference with CPD vs mediation is that CPD requires admission of the 'charges' - but if the panel can't agree wito the proposals drafted by the lawyers before hand it goes to a full scale hearing and starts from a clean slate other than the disclosures.

[CYMR0]

IanA2 said:

Thanks for that. To be clear then, if they concede a fact in JM, that they have previously concealed, that can be used at a later hearing.

Do you mean concealed or conceded?

If they've made an admission without prejudice at the hearing, it remains inadmissible as it is made on a without prejudice basis.

If they've previously disclosed something, the fact that it has been referred to in the mediation does not render it inadmissible.

[anonymous-user]

IanA2 said:

Breadvan72 said:

You are misreading the document, OP. You are not prevented from advancing factual or legal points mentioned at the mediation. The mediation isn't for arguing the case anyway, but the restriction simply means that what was said at the mediation can't be disclosed later. Parties can make concessions, make offers etc and not have these relied on later. This doesn't mean that the parties can't put their cases at a later hearing.

Judicial mediation is, however usually a waste of time, as the Judges are reluctant to take an active mediator role. If you want to mediate, far better to hire a proper mediator.

Thanks for that. To be clear then, if they concede a fact in JM, that they have previously concealed, that can be used at a later hearing.

No, it can't. No concession or offer made at the mediation can be used at the hearing without the consent of all parties to the mediation. The mediation is like any "without prejudice" discussion, The parties' open cases as set out in their statements of case submitted to the tribunal remain open, and the fact that they might be mentioned at a mediation does not alter this, but discussions with a view to settlement cannot be disclosed to the tribunal unless both parties agree to this.

[IanA2]

Breadvan72 said:

No, it can't. No concession or offer made at the mediation can be used at the hearing without the consent of all parties to the mediation. The mediation is like any "without prejudice" discussion, The parties' open cases as set out in their statements of case submitted to the tribunal remain open, and the fact that they might be mentioned at a mediation does not alter this, but discussions with a view to settlement cannot be disclosed to the tribunal unless both parties agree to this.

Many thanks. That's a wrap for me. No JM.

Edited by IanA2 on Monday 4th August 10:07

[CYMR0]

IanA2 said:

Many thanks. Thay's a wrap for me. No JM.

How does that leave you worse off than taking it to a full hearing?

[Jasandjules]

IanA2 said:

Many thanks. That's a wrap for me. No JM.

Why? (without giving too much away obviously).

Of course some parties use mediation as a way to try to obtain advance notice of the other party's case but still, if you want to settle it mediation can be good (Not JM though, private mediation).

Why not see if they will undertake private mediation and the Respondent pay for the costs of the mediator.... This will give you an idea as to whether they are serious about settling or not..