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Is mandatory mediation the future?

Updated: May 16, 2023


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.


 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.


 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


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


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.


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


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.


 Law Gazette


 Mandatory Mediation and Rule of Law - 

 Towards Mandatory Mediation in



 Compulsory Mediation Response -


 What Happens when Mediation Becomes Mandatory -


 News focus: Will mediation become compulsory? -


 Mediation in civil justice: international evidence review -


 The Future of ADR and Civil Justice -


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