Mandatory Mediation: An English Law Perspective

Mediation is an effective way of resolving disputes without the need to go to court.[1] It involves an independent third party – a mediator – who helps both sides come to a mutually acceptable agreement. Mediation can be used to settle disputes in a variety of transactions and disputes, such as consumer, contractual and family disputes.

Mediators avoid taking sides, making judgements, or giving guidance. They are simply responsible for developing effective communications and building consensus between the parties. The focus of a mediation meeting is to reach a common-sense settlement agreeable to both parties in a case. The purpose is for parties to avoid the rough and extreme environment of a courtroom and save time, money and allow some flexibility in their issues. The courtroom usually provides an intense dynamic to each case and it is only in severe issues that a courtroom should be used to resolve an issue. However, in the past few years, questions have also been raised as to whether mediation is in fact a viable option. Although people often meddle between litigation and mediation, the focus should remain on determining whether the future holds mediation as a process which can replace formal contentious proceedings.

Judges and advocates have in the past recommended mediation as a preferred means to settle disputes. Courtrooms should be a last resort; the top priority should be to settle the matter.[2] Lord Phillips supports this view: “It is madness to incur the considerable expense of litigation….without making a determined attempt to reach an amicable settlement. The idea that there is only one just result of every dispute, which only the court can deliver is, I believe, illusory.[3]

Mediation, albeit a settlement tool, can be adversarial in nature. It is not uncommon for parties to emerge as winners from a mediation process, simple because they have achieved a favourable commercial bargain without having to incur the exorbitant costs of a formal contentious proceeding. Having said that, the mediation process is flexible: parties are able to retain control of the process, the information being shared, and the appointment of a suitable mediator. The process is also cost-effective and less complicated than formal contentious proceedings.

There are, however, certain ways in which the use of mediation can be improved. For example, mediation is not a mandatory process in England. Parties can refuse to mediate provided their grounds are reasonable; and, if they cannot satisfy the grounds, they will be penalized in costs even if they succeed in their substantive claims. Another potential issue is the use of experts in mediation. This tends to prolong mediations and make it costlier, especially where large sums or highly technical issues are involved. It may lead to a failed settlement and in fact wastage of costs and time of the parties.[4]

Should mediation be made mandatory?

In addition to the above, other serious issues, such as the lack of finality of a settlement, inaccessibility to key information and premature mediation[5], may discourage parties from resorting to mediation. Mediation presents a relaxed front in the field of law and with caseload already pending in the courts of England and Wales, an approach towards mediation should be made. However, the question of making it mandatory remains. Focus has been made intensively in this area and many advancements have been made, some of which I have discussed below.

Lord Woolf’s ‘Access to Justice’ report was published just before the CJR (Criminal Justice Review) in Ontario.[6] The aim of each review was to look for alternative routes to litigation and to find ways of ensuring that the justice process was more efficient for both the disputant and the State. Both reviews were notably pro-mediation. In 2004, the Automatic Referral to Mediation pilot scheme was begun in the Central London County Court (CLCC) for non-family civil disputes over £3,000. The impetus behind this scheme was partly the follow-up from the endorsement of mediation in Lord Woolf’s Report, but also the significantly positive results seen in the Ontario scheme. The CLCC scheme was primarily aimed at reducing parties’ legal costs and promoting swift dispute resolution. The scheme, however, produced mixed results. Overall, mediated cases had a much higher settlement rate than non-mediated cases. This was true regardless of whether the settlement occurred during a mediation process or not. Further, mediated settlements occurred considerably earlier than non-mediated settlements, reflecting the finding of the Ontario scheme that mediation increased the pace of proceedings.[7] As regards costs, the picture is unclear. Solicitors tended to think that costs had been saved, but only half of claimants settling at mediation believed this to be so.[8] Further, the timing of the mediation was an issue as there was evidence that parties were not ready to compromise in the early stages of the dispute, affirming the experience in Ontario.

There was a high rate of objection to mediation in the scheme, particularly in personal injury (PI) cases. Reasons given for objections made it clear that many solicitors did not view the mediation as compulsory, regarding opting-out as ‘a mere bureaucratic hurdle’.[9] Quek, in light of this, views the relaxed approach of the scheme to objections as its Achilles Heel, its results underscoring ‘the importance of setting clear criteria concerning the opt-out provisions, as well as ensuring a sufficiently high threshold for the parties to obtain an exemption from mediation’.[10] Certainly, the contrast between the CLCC and Ontario schemes lends strong support for this view. Nonetheless, it is worth noting that PI cases made up an exceedingly small proportion of all mediated cases in the Ontario scheme, which may have contributed to its relative success over the CLCC scheme. Another contributory element to the relative failings of the CLCC scheme may be its timing. The scheme began in 2004, the same year that the Halsey judgment was handed down, which suggested that mandatory mediation would be contrary to Article 6 ECHR. Genn has noted that, particularly faced with the high rate of objection in the scheme, the Court ‘seemed to be uneasy about forcing people to mediate against their will’.[11]

Times have changed since the CLCC scheme in the post-Halsey fall-out of 2004. The Ministry of Justice in February 2012 released their results of a Consultation, ‘Solving Disputes in the County Courts’, which addressed, among other matters, the role of mediation. The Ministry of Justice has declared its intention to move forward with proposals extending the current mediation service offered for small claims, primarily focusing on a telephone-based service, and introducing an automatic referral to mediation scheme (ARS) for all cases in the small claims track. The responses to the consultation demonstrated wide support for such an ARS, but specifically on the understanding that this was not compulsory mediation, but instead a ‘requirement to engage with a small claims mediator with a view to considering mediation’. The distinction between an ARS and a compulsory scheme has been emphasized:

We would not, however, support a system of compulsory mediation… because it would be unworkable and potentially time-wasting.[12]

Jackson LJ was equally clear in his rejection of a compulsory scheme, declaring that mediation in small claims cases should be ‘strongly encouraged’, but ‘should not be made mandatory’.[13] This is a distinction that is echoed in many of the responses to the consultation and, whilst it is submitted that this is the right stance to take, the line between ‘strong encouragement’ and compulsion is actually rather hard to draw in practice.

It is clear from certain aspects that to mandate mediation would be to intertwine sanctions on parties, making it look like mediation is being forced upon them. Mediation is seen to settle a matter without the stringency of a courtroom and parties should feel free to decide that. Of course, parties who wish to pursue matters through court are welcome to do so; however, every 10 years or so, a consultation is made as to whether mediation is the way to go about settling matters. The main areas of analysis are time, cost efficiency and flexibility and delay in court. One such call for cost-saving reforms was Lord Woolf’s Report in 1996, which called for an increase in ADR and promoted early settlement.

The intention of the resulting reforms was to reduce cost, complexity, and delay in the court system. The principles behind the CPR are very much still alive and alternative dispute resolution, and mediation, is supported at a governmental level in England. Indeed, mediation theoretically helps to relieve the pressures on the court system: volume of cases, time, and money.[14] Since the courts have already set an example of sanctions regarding unreasonable refusal to mediate, it would not serve to be effective if mediation is made compulsory. Instead, raising awareness of alternative dispute resolution mechanisms, particularly the advantages and disadvantages of mediation, would be a better approach.

In my view, mediation should not be made a compulsory pre-requisite to formal contentious proceedings, and instead be allowed to evolve in its natural manner. Strong emphasis on educating practitioners and the public at large should be made, advocating the benefits of mediation before trial. The benefits of mediation are clear, but the risks, difficulties and drawbacks of compulsory mediation schemes are sufficiently serious to tip the balance back in favour of keeping mediation a voluntary option, without repercussions for failure to mediate.

Mediation

References

  1. https://civilmediation.org/for-the-public/about-mediation/.

  2. Gard, ‘The future of mediation in the UK’ (2010, Gard News) <http://www.gard.no/web/updates/content/5613679/the-future-of-mediation-in-the-uk> accessed on 3 July 2020.
  3. Ibid.
  4. Gard, ‘The future of mediation in the UK’ (2010, Gard News) <http://www.gard.no/web/updates/content/5613679/the-future-of-mediation-in-the-uk> accessed on 3 July 2020.
  5. https://www.jamsadr.com/files/uploads/documents/articles/oles_gec_10-common-reasons_2010-fall.pdf.
  6. H Waller, ‘Towards Mandatory Mediation in England?’ (2013) 5 The Student Journal of Law <https://sites.google.com/site/349924e64e68f035/issue-5/towards-mandatory-mediation-in-england> accessed on 3 July 2020.
  7. Genn, ‘The Central London County Court Pilot Mediation Scheme Evaluation Report’ (2001) Arb 109.
  8. Genn, ‘Twisting Arms: court referred and court linked mediation under judicial pressure‘, MoJ Research Series 1, 07 May 2007.
  9. H Waller, ‘Towards Mandatory Mediation in England?’ (2013) 5 The Student Journal of Law <https://sites.google.com/site/349924e64e68f035/issue-5/towards-mandatory-mediation-in-england> accessed on 3 July 2020.
  10. Ibid.
  11. Ibid.
  12. Lord Phillips CJ, ‘Alternative Dispute Resolution: an English Viewpoint’ (India, 29 March 2008).
  13. H Waller, ‘Towards Mandatory Mediation in England?’ (2013) 5 The Student Journal of Law <https://sites.google.com/site/349924e64e68f035/issue-5/towards-mandatory-mediation-in-england> accessed on 3 July 2020.
  14. Ibid.

Author:

Hassan Ansari

The author is a barrister, and practices before the High Courts of Sindh, Pakistan. He has also obtained a Master's in Advanced Legal Practice.