A judicial mediation is a method of mediating a settlement with the involvement of a judge. It is consensual between both parties and is a mutually accessible way to resolve differences in private and confidentially.

As all parties voluntarily opt into a judicial mediation, they should approach this with a spirit of openness to try and achieve a mutually agreed resolution.

Whilst it is recommended that parties stay the course to provide the best chance of success, anybody can still leave at any time.

The process

  1. At a preliminary hearing, an employment judge may consider a case to be suitable for judicial mediation. If so, they will ask parties if they are interested.
  2. A case management discussion will set out logistics such as timings, dates and whether any documents are to be submitted in advance.
  3. The Claimant will (commonly) begin the judicial mediation process and provide their opening position in a Schedule of Loss. The Respondent then prepares a Counter Schedule of Loss.
  4. The abovementioned Schedules, among any additional documents which may be required, are served on a without prejudice basis and sent to the employment judge. The judge will then review the information and consider if there is a reasonable prospect of the case settling.
  5. If there is a reasonable prospect of settlement, the case will be listed for judicial mediation.
  6. On the day, the employer must have individuals with the correct level of authority to make decisions at the mediation in attendance. The mediation is more likely to take place virtually (by phone or video) than in-person.

What is the judge’s role?

A judicial mediation is not a hearing. Whilst parties can pose questions to the judge at times, the judge will not make decisions, impose positions, hear any evidence or provide an opinion on whether the case is right or not. Rather, the judge’s role is to manage the process in a fair manner and ensure all parties understand the process as it progresses.

Throughout the mediation, the judge will go back and forth between the parties and relay the offers and any messages. When informing the judge of specific information, parties can specify what information the judge cannot repeat to the other side. For example, there may be information justifying one’s position during the settlement negotiation which the other side should not be informed of. If this happens, parties need only make clear to the judge what should not be disclosed.

Once the judicial mediation is over, so is the judge’s involvement in the case.

If unsuccessful, what happens?

In the event it is not successful, everything discussed during the judicial mediation is confidential and cannot be relied upon at a later stage. The case progresses to the employment tribunal for the scheduled hearing date.

If successful, what happens?

The claim will be withdrawn and the tribunal proceedings will be dismissed.

If opting to reach agreement through a COT3, ACAS would need to be informed of the progress to incorporate the agreed settlement terms and provide a record of the settlement terms. The alternative option to a COT3 is for an agreed settlement agreement between both parties.

Regardless of whether a COT3 or settlement agreement is used, both serve the same purpose of finalising the agreed terms of the judicial mediation.

Overview of Key Benefits

  1. Success Rate: Whilst subject to fluctuation and influenced by the ongoing impact of Covid, judicial mediation has a historically strong success rate. The newly published Presidential Guidance recognises (at para 27) that between 2009 and 2023, approximately 65-70% of judicial mediations have reached successful settlement. Even for cases which don’t settle on the day, it has been known to open up dialogue leading to later settlements prior to future hearings.
  2. A court process takes time and money: Judicial mediation can save clients costs and reduce the risk of spending more money than the potential reward available.
  3. Emotional cost: If a hearing is scheduled for several days or even weeks, this can have a big impact on one’s wellbeing. Settling via judicial mediation avoids the stress of a hearing and can secure personal closure. Reaching a settlement can also provide the resources and ability for individuals to begin the journey of moving on sooner rather than later.
  4. Privacy: Whereby written judgments are automatically published online, judicial mediations avoid the risk of adverse publicity.
  5. Future relationships: It may be beneficial in preserving future relationships, particularly if employees remain employed by the Respondent.


In summary, it is important not to discount what different forms of alternative dispute resolution can offer for both parties (employees and employers) when dealing with employment litigation.


If you have any further enquiries regarding Judicial Mediation please feel free to contact our Employment Team and we would be happy to help.