MAKING MEDIATION MANDATORY

The debate around whether mediation can or should be made mandatory has been around for some time. In July this year, the government announced their intention to implement mandatory mediation in all contested claims under £10,000 in the county courts; one driver being only 21% of small claims opt into the present Small Claims Mediation Scheme (SCMS).

The government is also consulting on introducing mandatory mediation to other areas, such as the SEND Tribunal.

More widely, there is growing commentary regarding the use of compulsory mediation - in view of many, its time has come.

What are the benefits of making mediation mandatory?

The potential benefits of mediation are old news:

• Saving costs and time
• Finding more comprehensive, imaginative, and potentially commercial solutions to disputes
• Reducing grief, stress and repairing relationships
• Ensuring sustainable agreements

Making mediation “mandatory” however, could overcome some other persistent problems:

• Mediation take up is currently very small, despite various measures which have sought to incentivise disputants
• Parties would not be able to argue about whether to mediate, they would have to take that step
• Compelling mediation would overcome a hurdle sometimes felt by lawyers that advice to clients that they should mediate might be seen as “weak”. Conversely, lawyers would be unable to avoid settlement for commercial gain
• And even reluctant parties warm up.  To adapt the analogy; you can take a horse to water and some of them will drink.

Tricky questions 

However, the prospect of making mandatory a process which has thus far only been voluntary gives rise to some very tricky questions.

• Voluntary

Often referred to as the “mediator’s” objection is its voluntary nature. This is arguably the

hall mark of success of the process and ensures sustainable agreements. In that context, can people really be “made” to mediate?

• Access to justice and the rule of law

By contrast, the “lawyer’s” objection relates to access justice and the rule of law.

Arguably, mediation as mandatory process brings in a constraint in terms of access court - whereas Article 6 and the right to a fair trial must mean that access to a court is without constraint.

A case may also require a court to decide a wholly new legal point. As society progresses, new problems and issues arise; the law must develop and that requires litigation and judge made law. There are also concerns that an expansion of a secretive process would allow powerful parties to disputes, such as government departments, to hide  what might be persistent issues behind the confidentiality of the process.

• Monitoring and sanctions

Thereafter, real concerns arise regarding how the engagement of the parties could be monitored. If forced, is it realistic to expect parties to engage in good faith? What would bad faith look like? Might disputants use the process to run down the other sides’ costs? Or, to obtain disclosure for later use in court? Will mediators be asked to break the confidentiality of the process and report to a court on the conduct of the parties? But, could that be sustainable given the principle of confidentiality so intrinsic to the success of process?

• Public confidence

Lastly, if mediation is be rolled out, the public are still relatively unsure about mediation so how is that going to be addressed – and, who will pay? Parties to small claims are often litigants in person; if they have to pay to attend a mediation that is likely going to result in disproportionate cost.

Next time: tools to address these tricky issues.