So, at last, we now all know what we’ve been thinking for long enough but few would dare to say. Judicial mediation doesn’t work and, in direct contradiction of its stated purpose, generally ends up causing greater expense for the parties.
According to research conducted by the Ministry of Justice concerning Employment Tribunal discrimination cases reported in this week’s Law Society Gazette, the pilot study revealed “no discernible, statistically significant effect” on the number of cases settled or resolved without a formal hearing.
To compound matters, the research has also revealed that, far from reducing costs for the parties, those cases in which judicial mediation was used cost the parties an average £880 more in overall net costs.
Most experienced lawyers can identify more or less immediately those cases which are likely to have a reasonable chance of settling by mediation or some other form of alternative dispute resolution. Equally, we know that in most cases people pay lip service to attempts to mediate “to give the right impression to the court” but in the knowledge that any attempt at mediation is a complete and utter waste of time.
It is a farce that parties in litigation are obliged to consider mediation and other forms of alternative dispute resolution and that they can face costs sanctions if they cannot be seen to have done so. The sooner this illusory process is abandoned the better. Leave it to the lawyers to decide whether and on what terms there should be mediation. I can’t think of any lawyers I know who would push for a case to go to trial if they knew that a case could be settled by mediation. If some lawyers do engage in unnecessary costs building exercises, they will soon be found out by their clients.
The final irony is that the process was found to be “an expensive process to administer” and that the costs were not offset by the expected benefits. So it seems that judicial mediation costs the parties and the courts / tribunals and, on balance, brings no discernible benefits. Surely the time has come for the courts and tribunals to face up to the reality that introducing additional hoops for litigants to negotiate in the naive hope of reducing the administrative and judicial burden and saving costs is good for no-one and should be abandoned as soon as possible.
And while we’re on topic, it will be interesting to know the statistics for settlements as a direct result of the intervention of ACAS prior to Employment Tribunal action being taken. I, and many of my colleagues and fellow employment lawyers, believe that the vast majority of the ACAS “settlements” are simply waive through COT3 settlements, the terms and conditions having being negotiated by the parties prior to ACAS’s involvement. This gives ACAS fantastic figures, but the Government doesn’t actually understand the true nature of the situation.
I would speculate that the statistics post April 2009 for potential cases settled by ACAS prior to either party taking legal action would reveal that only a tiny number of parties had taken this route. What’s worse, we are getting an increasing number of new clients coming to us half way through a Tribunal process with a damaging Response lodged and having made a mess of Orders because they thought that they could rely on ACAS to help them throughout the process (or they were told that they could do it themselves) as they were sent letters at the start of the case. This is NOT the case and the Government and Judiciary should wake up and realise that we have come too far in the last 15 years in terms of the complexity of the law and value of the claims available in the Employment Tribunal to be giving the impression that vulnerable people and businesses can conduct high value litigation on their own. It is simply not a realistic proposition and is highly damaging to both parties.
We just beat the charges for JM, which came last week. The mediation session was ineffectual because the judge refused to take evidence undermining the defence to the respondent. There was no understanding of the others position. The claimant had a very strong case of discrimination; the respondent believed otherwise. But these positions were not allowed to be tested. Not by the judge expressing an opinion, which apparently he is not supposed to do, but by the judge at the very least taking the evidence to the other party. The mediation turned out to be no more than the judge asking the each party in turn what each was prepared to give or accept. The negotiations fell down almost immediately because both had no understanding of the strength or otherwise of the other parties case.