I recently attended a session with somebody who works within the employment tribunal hierarchy.
The discussion naturally gravitated towards our respective professions.
As I often do, I suggested that instead of just relying on conciliation, have they ever considered mediation as a viable method of reducing the increasing burden that is being placed on employment tribunals?
The answer they gave me was ‘we already have judicial mediation.’
As I explained to him, for me the term ‘judicial mediation’ (where a judge not involved in the case acts as a ‘mediator’ prior to the tribunal itself) is something of an oxymoron.
Whilst the principles the tribunals follow are similar to real mediation (voluntary, without prejudice, etc) one of the principal attributes of any good mediator is to be non-judgmental and we don’t dwell on the positions parties are taking.
This is especially important in workplace mediation, where it’s all about personalities, beliefs, cultural backgrounds and personality traits.
The skills and attributes of a judge (unsurprisingly) requires them to be highly judgmental - exactly the opposite to that of a mediator.
We get the occasional lawyer who wants to attend our mediator training - when I explain what makes a good mediator they sometimes don’t go ahead.
Don’t get me wrong, some lawyers are brilliant mediators and I know lots who are - but they tend to be more in the commercial mediation space where getting to know individuals and understanding relationships is less of a focus (I am a commercial mediator too).
For someone whose profession is to be a judge, it’s difficult for me to correlate the mediation requirement of not being a judge.
The reality of judicial mediation is that the judge who oversees the case will give their opinion about the strength of each party’s case based on evidence and questioning about what happened in the past.
In truly effective workplace mediations, we read historical information such as grievances but we focus on the future and the key interests of the parties.
For me, judicial mediation is actually a much more effective and professional level of conciliation than the ACAS process when a tribunal is initially registered.
The success rate is around 65%, which shows (what I would view as) judicial conciliation is well worth a try but when you compare this to mediation success rates - ours at the time of writing is just over 95% - the difference between mediation and conciliation is in the region of 30%.
Today there’s a backlog of around 50,000 employment tribunal cases in the UK.
I would adopt an alternative approach.
Introduce workplace mediation skills into organisations, use external mediators where needed and only a small percentage would get to tribunal - where they do, try judicial conciliation and 65% of that small number of cases won’t go to the tribunal hearing.
The cases which get to tribunal would be the ones that really need to be there and require a judgement to be made in terms of who wins and who loses - thus will ultimately form precedents and evolve the landscape of employment law.
What we need to do is educate more about the effectiveness of proper human discussions - mediation is not rocket science but it’s also tough and a real skill to learn - significantly, when training as a mediator one of the key learnings is…
… to never judge!