Mediation is being made compulsory

Introduction

Mediation is probably the most commonly used form of Alternative Dispute Resolution (ADR). Mediation is an informal (yet structured), interactive process where an impartial third party (mediator) assists disputing parties in resolving conflict in an effort to facilitate settlement of the disputed issues through the use of dialogue and communication to reach an outcome. One of the key advantages of mediation is the fact that the parties retain a level of control over the outcome which they would not have in any other ADR forum.

Mediation is often used to avoid the need to litigate. Before a party issues a claim, they are required to follow the guidance set out in the Practice Direction on Pre-Action Conduct and Protocols, which specifies that litigation should be viewed as a last resort.[1] it is one of the overriding objectives of the Civil Procedure Rules (CPR)[2] to encourage parties to use an alternative dispute resolution procedure if the court considers it appropriate. The Pre-Action guidance states that courts may ask parties to provide evidence that they have considered using a dispute resolution process. If one party is found to have unreasonably refused using a form of ADR, the court is empowered to apply sanctions which can include ordering the party at fault to pay adverse costs at the end of the process or staying the case until the required steps have been taken. Cost consequences can be severe.

The government now plan on making mediation compulsory for claims under ￡10,000 with clients consulting a mediator in a free one-hour mediation session before having the option to progress to a hearing. It is important to note that the idea behind mandating mediation is the requirement for both parties to attempt mediation, rather than being forced to stay in a mediation process if no mutual agreement has been concluded. This means that more than 272,000 people every year could be helped resolve disputes outside of court. The ultimate aim is to make capacity for courts to deal with much more complex cases, quicker and to relieve the pressures and reduce costs within the civil justice system.

Context

Currently, there is a Government proposal in place advocating an increased use of mediation within the civil justice system. The Ministry of Justice is seeking views from all interested parties in this effect which will be open until October 2022[3] and further, explore whether certain types of cases should be exempt from the requirements to mediate.

The view explores the proposed requirements to attempt mediation for all proceedings allocated to the small claims track of the County Court, which is the case management process that applies to most types of claims valued up to ￡10,000. This value is lower for personal injury and housing disrepair claims. Mediation sessions will be provided for by Her Majesty’s Courts and Tribunals Services (HMCTS).

On Wednesday 7th September 2022, I attended the All-Party Parliamentary Group discussion on the Ministry of Justice’s mandatory mediation consultation, where a number of key points were raised. We discussed whether parties should be able to apply for individual exemptions from the requirement to attend mediation, assessed on a case-by-case basis by a judge. Many believed that exemptions should be kept to a minimum as it is extremely important that compulsion to mediate is robust and parties (or representatives) are not able to negate a mediation process on less than appropriate grounds. If one party wants to refuse mediation, then they would need to be a very good reason for doing so.

Another point of discussion is being that a one-hour compulsory mediation may not be enough for all cases. We must assess cases due to their complexity and sensitivity. It was suggested that perhaps the mediator should decide on a case-by-case basis how long a certain case needs to be in mediation, and others believed that this would result in a mediator taking on the role of a judge by making these decisions. Would it be time practical for cases to be referred to a judge for a decision before the mediation itself takes place?

Another issue here to consider is if the compulsory mediation is increased to be more than an hour, depending on the type of case, could we also see a potential rise in a back log within the case systems? ?There were suggestions made that two-hour sessions would be best; however, it would be better to implement the one hour so the process can commence as soon as possible as there is a huge backlog of cases which people are eager to conclude.

The use of online platforms in conducting mediation could also help with the backlog, reduce costs, and make the overall process of mediating a lot easier for parties to set up.

With mediation becoming compulsory an ongoing issue was discussed, exploring the level of quality in todays accredited mediators. It was discussed that there is a huge accreditation and quality problem with mediators within the UK in comparisons to other countries such as America and Canada who have very high standards of training. The standard of mediation accreditation in the UK does not compare to how seriously other countries take mediation. This is something wider to consider for future accreditation programmes in the UK who can accredit people into becoming a mediator in just a few days as opposed to undergoing the years of studying and training that is common place in other countries. In the past, majority of complaints have been regarding the quality of mediators provided and that quality is more important than accreditation. Perhaps there is an issue with the accreditation bodies and national standards should be applied. ?The counter position is that the UK does not need such a high standards framework that other countries adopt and that mediators are coming together to become better and deliver higher quality within the UK through practice and peer review.

Mediation has not been widely accepted in the past and it has been proven that many would often prefer to head straight into litigation, for a number of factors. Mediation is cheaper, faster and has little or no risk, yet the idea behind mediating is unattractive to most. Paul Randolph explored the history of the problem at hand from a psychological and biological rationalisation, and why people queue up to purchase litigation and leave mediation on the shelf.[4] it’s been said that many are not yet educated on the benefits of mediation, however mediators have spent the last 20 years educating the correct professionals on the advantages of choosing mediation over litigation.[5] Randolph states that as humans, we are programmed to have an innate aggression to win whereby we no longer think rationally or commercially and instead, are driven by an emotional drive to win against our opponents.

As a result of our psychological and biological responses, many people do not view mediation as an immediate option as humans have a tendency to invoke a “fight or flight” reflex associated with fear of a personal attack upon our values of integrity.[6] Some parties would much rather take matters to the courts than attempt to settle a dispute beforehand, out of spite.

Historically it has been argued whether mediation should be made compulsory or not. Some mediators would argue that mandatory mediation would unfairly impede the public’s right of free access to the courts, create another layer of costs procedure and achieve lower success rates statistically. In addition, mediation may not be appropriate in certain cases where there is a requirement for a definite ruling on the law, an injunction is sought, or litigation is desirable in that instance. There is also a view that mediation is off putting due to parties having a bad past experience with it and go on to assume that trying mediation again would be a similar experience. Having a bad mediation experience can be due to many factors, including having an inexperienced mediator which follows on my above point of the need for better mediation training.

Alternatively, others would argue that mediation is not depriving a party of the right to go to trial and further, saves parties the considerable expense of litigation.[7] There is no constitutional bar in the UK to mandatory mediation. Article 5(2) of the EU Directive still in effect post Brexit (according to the explanatory memorandum accompanying the Exit Regulations, once the UK had left the EU, the government did not want different rules to apply to domestic mediations)[8] permits our national legislation to make mediation compulsory, providing that it does not deny parties a right of access to the courts. in July 2021, the Civil Justice Council’s (CJC) Judicial ADR Liaison Committee published a report which set out their view that not only was compulsory mediation lawful but that its introduction should be encouraged.[9]

Conclusion

The idea that mediation should be made compulsory has been widely controversial. The ultimate aim is to tackle low levels of uptake, ensure that both parties and the courts realise the benefits of mediation and reduce the courts capacity in order to make capacity for much more complex cases. This could be a very good thing for the economy, many countries across the globe have successfully adopted the same dynamic when it comes to ADR in order to resolve matters without the need to litigate and help tackle the backlog that courts are experiencing. The aim is to introduce a requirement to mediate so that parties do not only consider but participate in mediation.

I do believe that the government’s plan to make mediation compulsory will have a significant impact on the major backlog the courts have been experiencing due to the lockdowns we experienced in the UK.

I believe that compulsory mediation is the change the civil justice system needs, it will be a huge step in turning away from the idea that mediation is a taboo subject and subsequently I hope that more people will feel comfortable resorting to mediation before commencing onto litigation. Despite one house compulsory sessions may be seen as starting small, it is still a step in the right direction, and further in 10-15 years this could be the situation for all cases.

There has been a culture change in the general attitude and approach to mediation needed for some time to embed mediation in the general publics psyche as a first resort to getting a workable, swift and real resolution rather than perpetuating the costly and adversarial traditional methods of protracted legal correspondence or litigation.

Whether or not mediation is made compulsory, it is important that the courts continue to encourage the use of mediation by pointing out the significant benefits, require explanation notes from the parties who do not wish to mediate their reasons for doing so and penalise the parties who unreasonably refuse to mediate. The Justice system being able to compel parties to meet each other with the intention to resolve matters will have a profound impact on the judiciary, legal system and ultimately the end users once this is firmly established in individuals and their legal representatives the benefits will be reaped by all.

The inimitable Sir Alan Ward states:

“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable.

Perhaps the compulsory nature of the proposals will eliminate the need to run around the litigation course, or at the very least reduce it significantly.”

[1] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

[2] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01

[3] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1093682/mediation-consultation-web.pdf

[4] https://www.judiciary.uk/wp-content/uploads/2018/03/article-compulsory-mediation-response-adr.pdf

[5] As above

[6] As above

[7] As above

[8] https://www.legislation.gov.uk/ukdsi/2019/9780111178980/memorandum/contents

[9] https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-shouldbe-encouraged/