New judicial assessment procedure

The Employment Tribunals have a new judicial assessment procedure, whereby a Judge can give an early indication of his/her impression of the strength of the parties’ cases.

Under the Protocol dealing with the new process, the assessment can only take place after issues have been clarified and case management orders have been issued, and with the consent of both parties. Once the Judge has made a judicial assessment, they will not be involved in the main hearing, but can continue to be involved in case management.

The intention of the procedure, according to the Protocol, is to assist where a party to a claim is not professionally represented.

Obviously, it will also assist focussing minds on settlement, and this will be encouraged and time will be made available for it.

The new procedure means that an assessment will be made before any facts have been aired or considered in a case, and may be viewed by the parties as a means of mediation or even arbitration. Unlike arbitration (where evidence will be heard, unlike here) the purpose of mediation is usually not to give any impression of merits in a case but to let parties work out their own resolution. This new process therefore goes some way beyond a mediation and the conduct of a proper hearing. Of course, the outcome of the hearing could be quite at odds with the initial judicial assessment.

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