T611)
| Published date | 21 March 2018 |
| Subject Matter | Employment tribunal forms and guidance |
Employment Tribunals (Scotland)
Judicial Mediation
When a person makes an Employment Tribunal claim normally the process which
is followed involves a Hearing taking place before an Employment Tribunal at
which evidence is heard and legal arguments are made with a decision (judicial
determination) then being made on the case. The process is a formal one
involving evidence being led from witnesses and cross examination, which is very
similar to what happens in an ordinary court. Mediation provides an alternative
way to resolve a dispute which does not involve going through the normal tribunal
hearing process. It is a form of what is commonly referred to as ADR - Alternative
Dispute Resolution.
Mediation is a process in which parties who are in a dispute seek to build an
agreement with the assistance of a trained mediator acting as an impartial third
party whose aim is to help the parties reach a solution to their problem. Mediation
is voluntary and aims to offer parties the opportunity to be heard, to hear each
other’s perspective and to decide how to resolve their dispute themselves. In a
mediation process the mediator does not take sides or make judgments. Instead,
his or her focus will be on developing effective communication between parties
and building consensus in relation to a solution to the dispute which exists.
Employment Tribunals (Scotland) offers judicial mediation in certain types of
cases. However, while judicial mediation is an alternative to a tribunal hearing it is
not an alternative to ACAS conciliation which will continue to be available in the
normal way. Although ACAS and the tribunal judiciary collaborate in relation to
judicial mediation, the statutory duty placed on ACAS is not compromised by the
process and ACAS maintains its independence.
In the judicial mediation process the mediator is an Employment Judge who has
been trained as a mediator. The Judicial Mediator will not express a view on the
prospects of success of parties if the case was to be judicially determined and will
not offer legal advice to parties. However, using his or her experience and
knowledge, the Judicial Mediator will assist parties who wish to find a way of
resolving their dispute which is mutually acceptable.
Suitable cases are identified, as part of the normal tribunal process, by an
Employment Judge usually at a Case Management Discussion. To be considered
for the judicial mediation scheme a case
• must include a discrimination complaint or a complaint of unfair dismissal.
• must normally be predicted to last at least three days if it was to proceed to
an ET Hearing.
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