MAKING MEDIATION MANDATORY - Tools and solutions to tricky questions

The current literature and commentary on making mediation mandatory, identifies a number of tools by which the tricky issues identified in our earlier article might be resolved.

• Language and concepts

Ditch outdated language; it is time to say goodbye the terminology which keeps mediation as a side show. As Sir Geoffrey Vos said in response to the report by the Civil Justice Council on mediation:

“As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”.

It might also be an advantage to find other words in place of “mandatory”. The term is somewhat coercive. Many things are done as part of civil and criminal justice processes which are mandatory, but we do not, for example, refer to “mandatory witness statements”.  Rather, compliance is part of the system and its rules. Indeed, the MOJ consultation on mediation uses the more energetic term  “automatic referral” interchangeably with “mandatory mediation”.

The mediation and legal community must also wrestle with the big concepts.

The mediation community has argued that the voluntary nature of mediation is central to the success of the process and that a party’s right to self-determination should be respected.  However, whilst in some contexts, the voluntary nature of attending a mediation and reaching agreement is important, such as neighbourhood disputes, it is also important that the reality of voluntary engagement is not overplayed.  Often, people come to mediation exhausted, afraid, having had brutal legal advice about the prospects of success, the time to litigation and costs. Mediation is the least worst option. It is not the voluntariness that makes it work; it’s the process.  

Compulsory mediation would not remove the party’s right to decide if they want to settle, and on what terms to do so, once they are in the mediation process. In this sense, self-determination and some voluntariness of the mediation process are retained.

In addition, there are already elements of compulsion already in various parts of the civil system with no data saying the compulsion leads to lower settlement rates.

As to the “access to justice” and the “rule of law” concerns often articulated by lawyers, the July 2021 Civil Justice Council report on compulsory alternative dispute resolution   likely settles the debate about Article 6. The CJC concludes that provided parties retain the right to proceed to court at all stages, participation in dispute resolution can be made compulsory without any breach of Article 6.

“… any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights. If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation then there is not…….. “an unacceptable constraint” on the right of access to the court.”

However, the development rule of law is an issue which is more difficult if widescale dispute resolution is envisaged. At present, the hope is that taking smaller iterative cases out of the system will bring benefits to justice and rule of law as the burden on the court system is reduced, freeing up more time for complex points to be dealt with.

Finally, the issue of sanctions: Where the judiciary have been cautious about the wisdom of imposing sanctions linked to a willingness to mediate, much commentary is to the effect that this is too cautious. If attempting mediation is required by rules, sanctions are appropriate as they are for other breaches of rules. In its consultation, the government asked how adequate engagement in mediation should be assessed and whether current proposed sanctions, such as  possible adverse costs orders or striking out, are adequate. What sanctions should be and how to enforce them will mark a significant development.

• Funding and information

At the moment, the supply of mediators exceeds demand, but mediation is an unregulated market which can be difficult to navigate. As a potential user it can be hard to know how to identify the most appropriate provider. Disputants, especially litigants in person, need proper and better information before mediating about what dispute settlement involves.

Under the government proposal about civil commercial small claims, all parties in such actions will be required to participate in a free one-hour telephone mediation (not just an information session about mediation) conducted by mediators within HMCTS. As the scheme expands, it will clearly need funding. If expansion continues, funding mediation will need careful thought to prevent the cost of it becoming  a disproportionate burden on disputants, especially those self-representing.

The expanded Small Claims Mediation Service will provide important information which will feed into discussions regarding how compulsory mediation might be rolled out to other areas. Other pilots must also be properly monitored and evaluated with good quality research about the impact of mediation. Good work is being done. Essex University, for example, is engaged in a research project involving qualitative analysis of “Mediation of Medical Treatment Disputes”.

• Public confidence and protection of disputants

Finally, current discussions on making mediation mandatory suggest a clear drive to consider increased regulation and oversight of the mediation industry. Given an unregulated market, it is thought that greater uniformity of standards is required with a more robust systems of training for mediators. Suggestions include benchmarking for training providers and a possible “chartered” status for mediators. This might include increased or amplified training for mediators, particularly given an anticipated rise in litigants in person, many of whom might be very vulnerable. Interesting work is being developed around trauma informed mediation, for example.

Thereafter, public confidence will also be bolstered by a clear mechanism for the regulation of mediators and a system of redress for complaints.  

Conclusion

The proposed introduction of mandatory mediation to small claims marks a significant possible change of direction. It might foreclose a possible intention to move the system to default system of dispute resolution of which litigation one possible track. This idea has been around for some time. It was an aspiration articulated by the then Attorney General, Baroness Scotland, when she announced the government’s aspiration of making ADR the mainstream dispute resolution process (MDR), and litigation the alternative. More recently, the President of the Family Division, Sir Andrew MacFarlane, gave a speech urging lawyers to advise parties to a family dispute to take other routes than adversarial litigation noting the courts should be seen as the “last resort, rather than, as it is seen by many, the first port of call”.

Next time:  Can Environmental Mediation save the Planet?