Introduction
This essay will address the question in three stages. Firstly, by identifying the pros
and cons of imposing mandatory mediation. Secondly by analysing the effectiveness
of mediation in jurisdictions where it has been made mandatory. Finally, by
attempting to identify any common factors, possible causes for the results and reach
a conclusion. The essay will also consider the long-term acceptance by litigants and
resulting sustainability.
Pros
The imposition of mandatory mediation would relieve the workload of the
existing judicial system.
It would accelerate the use of mediation, providing a cheaper, quicker and
less stressful method of resolving disputes.
It would cause more disputes to be resolved in private, which in many
situations is highly desirable for one or both parties.
It would promote a greater feeling satisfaction in the legal system because the
opportunity of increased control over the proceedings for both parties would
tend to increase the likelihood of settlements being amicable.
Cons
Mandatory mediation could be considered to overstep the intended purpose
and amount to coercion. It has been suggested that this would breach the
natural right to justice.
There is a natural tendency to resist anything that is imposed rather than that
which is entered into voluntarily.
A mediation that does not produce a settlement will be regarded as a failure;
as opposed to a decision by a judge, or the court of appeal, that always
provides finality. There is obviously a possibility that a failed mediation can
lead to a swifter trial but that does not remove the dissatisfaction felt by the
parties at the time. Both will feel that they have been forced to invested time
and money in something that has not resolved their dispute. That initial
impression will be the lasting one and what will be promulgated by the litigants
and the lawyers. With social media being what it is, that will be greatly
damaging to mediation as an effective form of alternative dispute resolution
(ADR).
On balance this suggests that the positive effects of introducing mandatory
mediation, in certain types of case, may outweigh the negatives. However, the
negatives are so strong that they are likely to prove insurmountable for most types of
dispute; at least for the time being.
What has been the effect of imposing mandatory mediation?
Jurisdictions such as Italy, Ontario, Turkey and some states in the USA have also
imposed mandatory mediation. Results have been mixed but in most cases
modifications have been necessary.
Italy started to encourage the use of mediation as long ago as 1993 but take up was
negligible. Mandatory mediation in certain types of case was imposed in 2011 but,
due to constitutional issues, had to be modified in late 2012. This was done by
limiting it to a smaller range of disputes. Not surprisingly, the number of mediations
rose sharply but over time then declined. In September 2013 Italy’s Ministry of
Justice reacted to this by introducing a mandatory mediation requirement for an
experimental period of four years, for certain categories of case. However,
engagement was limited to an initial meeting only. The requirement to fully engage in
the process and pay the resulting fees was removed.
The results of this experiment and the subsequent adoption show that some 200,000
cases per year, representing 8% of all civil disputes, attended an initial mediation
meeting. Of these over 43% proceeded to a full mediation where success rates
ranged from a low of just under 50% to a high of 70%, depending on the mediation
service that was used. In disputes that were subjected to a mandatory initial session
many went on to achieve a successful outcome. This has relieved the courts of 16%
of cases. Not surprisingly the Italian ministry of justice is now considering widening
the range of disputes that will be required to go through this process. It nevertheless
suggests that blanket mandatory mediation was unsuccessful.
Ontario introduced a trial of mandatory mediation as long ago as 1999. The scheme,
known as the Ontario Mandatory Mediation Programme, (OMMP) started in Ottawa.
Initially as a trial, it was made permanent in 2002. This was later extended to include
Windsor, followed by Toronto. The primary objective was to reduce pressure on the
courts. This was achieved but, following an evaluation in 2002, it was seen to have
also succeeded in reducing legal costs and provided a better experience for litigants.
Participants reported greater satisfaction with the legal system as a result of feeling
more engaged in the process than would have been the case in a court hearing.
Key findings from the experiment were positive, with 87% of litigants reporting that
their costs had been reduced. Their overall view of mediation was positive and that it
had been successful. After the mediations both lawyers and litigants reported that
their cases appeared to be suitable for engaging with the process irrespective of the
fact that it had been mandatory. A minority of lawyers and litigants were concerned
about the quality of the mediation outcomes. In Toronto the participating lawyers
disagreed with the statement that “justice was served by the process.” Among all
types of case most agreed that the mediated settlement was fair.
One widely held criticism was that the mediation could have been more effective if it
was conducted later in the proceedings. Presumably on the assumption that over
time the entrenchment of the litigants would weaken, and they would become more
willing to compromise. As a result, the initial deadline of 90 days of the first defence
being filed was extended to 180 days.
Canadian law professor, Colleen Hanyez, has conducted research into the
application of ADR and reports that mediators commented that the process
empowered the parties by providing a tool with which to handle the conflict and
improve their access to justice. Participants also reported that having engaged in
mediation they were less likely to litigate in the future, thus providing a significant
cost saving to the government and other public benefits.
Another Canadian law professor, Julie Macfarlane, has conducted research into the
role of lawyers in dispute resolution. She has concluded that there has been a shift in
attitude and there is now a willingness to move away from a lawyer-controlled
position towards encouraging client engagement in ADR through mediation. A major
point, which supports some of the findings referred to above, is that all forms of ADR,
and especially mediation, overcome the view expressed by many litigants that the
court process is unintelligible. In the case of mediation this was achieved by
providing the perception that each mediation was tailored to meet their individual
needs and circumstances. Also, that they had greater control over the proceedings.
Mediation encourages the parties to recognise an objective assessment of their case
which helps them to be realistic in negotiations. Canada subsequently introduced
mandatory mediation in certain types of case into other provinces.
A criticism of mandatory mediation has been that it has tended to have a higher
failure rate where it has been used too early in disputes, before the opposing parties
were ready to compromise. This can certainly be the case in industries such as
franchising, where parties work together within the terms of an agreement that
specifies that disputes must be mediated before they can be litigated. However, if
either party choses to abdicate further engagement in favour of mediation in the very
early stages of a dispute, there is a high probability that it will not be successful. One
way to minimise this problem would be to draft mandatory mediation clauses so that
the requirement would only take effect after litigation has commenced.
The problem was largely solved in a similar manner by the British Columbian court
where a ‘Notice to Mediate’ may be served no earlier than 60 days and no longer
than 120 days after the first response to a civil claim has been made. Either party
can serve the notice without reference to the court. This encourages the litigants to
take responsibility for the process and engage more positively, leading to a higher
success rate.
In England the use of ADR has been encouraged for many years. This trend
gathered momentum following the publishing of the Lord Woolf ‘Access to Justice
Report in 1996 which addressed the increasing cost of litigation and the limited
capacity of the courts.
In 2004, as a result of the Woolf report and the positive outcome in Canada, the
Central London County Court introduced a mandatory mediation pilot scheme for
certain types of non-family civil disputes. The scheme produced mixed results but
generally it was found that mediated cases had a much higher settlement rate. This
was the case even where the litigants settled during a subsequent trial rather than at
the mediation. A notable exception was personal injury cases which were generally
regarded by solicitors as unsuitable for mediation and not the most effective form of
ADR. These however made up only a small percentage of cases.
Mandatory mediation suffered a serious setback when its legality was challenged in
2004 on the grounds that it contravened Article 6 of the European Court of Human
Rights. The Halsey judgement confirmed that this was the case.
The Woolf report was strongly endorsed in 2009 by Lord Justice Jackson’s report.
This emphasised that mediation is the most important type of ADR in cases that do
not reach a negotiated settlement. Also, that it provided greater satisfaction to the
parties involved because, by negotiating, they had more personal involvement in the
outcome. However, Jackson LJ was emphatic in his view that while mediation was to
be strongly encouraged it should not be made mandatory.
The momentum towards the increased use of mediation was maintained by the 2011
Ministry of Justice press release which proposed the automatic referral to mediation
for small claims cases.
In 2014 mandatory mediation was introduced in the majority of cases in the Family
Court. The process involved Mediation Information and Assessment Meetings
(MIAMS) which proved to be highly successful. In July 2019 H.M. Courts and
Tribunals Service introduced mandatory mediation in the Small Claims Court for
disputes involving under £300. This utilised an on-line and telephone system. In
many courts this has proved to be highly successful.
The Civil Justice Council’s ADR working group published an interim report in 2017
and a final report in early 2019. These confirmed the benefits of ADR but found that
it is under-utilised due to lack of awareness and availability. The reports also found
that support by Government and the Courts was insufficient.
To address these shortcomings the report recommended that a greater awareness
of ADR should be encouraged through education in schools, colleges and within
legal training. It also suggested that disciplinary codes in the legal profession should
be modified to include a duty to advise clients of the benefits of ADR. Another
suggestion was that the ADR community should take responsibility for promoting
more actively to the voluntary sector and other relevant organisations such as the
Citizens Advice Bureau.
Other recommendations were that small claims mediation should be fully resourced
and that the Civil Mediation Council should promote cheaper mediation models such,
as online and via the telephone. Also, to modify its regulations to bring them in line
with those already established by the Family Mediation Council.
The working group also notes that online dispute resolution (ODR) and fixed costs
will drive more use of voluntary mediation. Significantly, the report does not
recommend that ADR should be made mandatory. It does however suggest that
adverse costs implications should be more widely used to encourage disputes to be
settled by ADR as opposed to litigation.
The last recommendation of the report is that the best way to encourage the use of
mediation would be to replicate the Notice to Mediate as operated in British
Columbia.
This would appear to be a very astute move by the ADR working group because it
goes a long way to overcome the problem, discussed above. Obviously the
possibility of a mediated settlement is likely to be higher if both parties enter into it
willingly but even if the one who has the process imposed on them via a Notice to
Mediate causes the mediation to fail the result will not be blamed on the justice
system. This is most important because failure rates will then not bring mandatory
mediation, per se, into disrepute.
Conclusion
The most likely outcome is that the UK will probably adopt the recommendations in
the Civil Justice Council’s ADR working group reports of 2017 and 2019. As such, for
the time being, mediation is not likely to be made mandatory for all categories of
case. The onus will pass to the opposing parties in the dispute who may both
engage voluntarily or when one of them issues a Notice to Mediate. The motivation
for this may be because of the threat of not being able to recover their costs if they
succeeded in the litigation. It may follow advice from their legal representative. In any
event, if mediation is entered into by the parties rather than by it being imposed on
them, the main objections to it being mandatory, as described above, can be
avoided.
Mediation requires a willingness by the parties to negotiate. An effective mediator will
assist them to find common ground and, acting neutrally, broker a settlement; but if
one or both of them feels that the mediation is being forced on them, they will not be
receptive, and the mediation will be likely to fail. The resulting grievance will be
focussed on the justice system that mandated the mediation. For this reason, the
most likely way in which mediation will become more widely used will be by actively
promoting its use. Also, by improving the success rate through increasing the
number of better trained mediators.
Increased specialisation by mediators in industry sectors will improve success rates
and encourage more voluntary use by litigants. Mandatory mediation already exists
in many commercial contracts and organisations such as Royal Institution of
Chartered Surveyors and the British Franchise Association; to name but two, have
responded by setting up schemes to provide specialist mediators. These naturally
have greater credibility, leading to increased confidence by the disputing parties;
consequently, success rates are higher.
New technology such as Zoom, Skype and Teams will increase the ease of
mediating and reduce costs. On close analysis it appears that market forces will
overtake discussions on the implementation of mandatory mediation and it will
become more widely used anyway.
Sources:
Law Gazette https://www.lawgazette.co.uk/news-focus/news-focus-will-
mediation-become-compulsory/5063343.article
Mandatory Mediation and Rule of Law -
https://journals.sas.ac.uk/amicus/article/view/5066/4962
Towards Mandatory Mediation in
England? https://sites.google.com/site/349924e64e68f035/issue-5/towards-
mandatory-mediation-in-england
Compulsory Mediation Response - https://www.judiciary.uk/wp-
content/uploads/2018/03/article-compulsory-mediation-response-adr.pdf
What Happens when Mediation Becomes Mandatory -
https://www.ciarb.org/resources/features/what-happens-when-mediation-
becomes-mandatory/
News focus: Will mediation become compulsory? -
https://www.lawgazette.co.uk/news-focus/news-focus-will-mediation-become-
compulsory/5063343.article
Mediation in civil justice: international evidence review -
https://www.gov.scot/publications/international-evidence-review-mediation-
civil-justice/pages/7/
The Future of ADR and Civil Justice -
http://mediationblog.kluwerarbitration.com/2019/01/18/the-future-of-adr-and-
civil-justice-in-england-and-wales/
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