A Recommendation for Mandating Mediation in England and Wales

By: Donald L. Swanson

The voluntary mediation scheme “does remain under-used.”

–October 2017 Interim Report on Mediation in England and Wales

England’s Civil Justice Council is an Advisory Body established under the “Civil Procedure Act 1997” to oversee and co-ordinate “the modernization of the civil justice system.”

On January 28, 2016, the Council formed a Working Group to “review the ways in which ADR is at present encouraged and positioned within the civil justice system in England and Wales.”

Interim Report

In October 2017 the Working Group issues its “Interim Report” on “ADR and Civil Justice.”

A foundational finding in the Interim Report is this:

“For the last 20 years the express ambition of all stakeholders has been that ADR should become integral to the Civil Justice System in England and Wales. It has not done so. ADR has had its successes undoubtedly, but they have been extremely patchy.”

The Interim Report then “explores a series of possible changes” and makes recommendations directed at minimizing passivity toward mediation and “increasing the use of ADR.”

An Area Examined

One specific area of examination by the Council is the “Court of Appeal Mediation Scheme,” which is the “only current court-annexed mediation scheme” in England and Wales.

This Scheme “has been running in its present form since 2003.” It works like this:

–The Scheme is administered, “on behalf of the Court,” by a “not-for-profit organization” established in 1990 to “develop ADR policy and practice,” to “train mediators” and to “provide access” to ADR.

–The Court approves a “panel of mediators,” who work “at modest fees per party.”

–Certain appeals are “referred to mediation” (i.e., cases involving “personal injury, clinical and professional negligence claims of up to £250,000”), with an “opt out” opportunity for each party.

–In all other appeals, “a Lord Justice can suggest” mediation “when considering permission to appeal,” and “parties can elect to use the scheme.”

The unfortunate result of such efforts is this: the “scheme does remain under‐used.”  In other words, voluntary mediation equals passivity and under-utilization.

Two Council Recommendations

Accordingly, two recommendations in the Interim Report are:

–“the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken”; and

–“there should be a presumption” in most cases that “if parties have not” settled a case in its early stages, “they should be required to bring forward proposals” for engaging in ADR.

Consistency with U.S. Experiences

Such findings and recommendations for the appellate mediation Scheme in England and Wales are in accord with experiences in the U.S. circuit courts of appeals. For example,

–The Sixth Circuit Court of Appeals has a court-annexed mediation program that is both mandatory in nature and highly successful in resolving appellate disputes.

–The Eighth Circuit Court of Appeals, by contrast, has a voluntary mediation program that is, by all reports, rarely utilized.

Conclusion

All courts where mediation is under-utilized should follow the recommendation of England’s Civil Justice Council and require mediation efforts when parties fail to reach a settlement in the early stages of a case.

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