England and Wales have a Civil Justice Council that, in 2016, formed an ADR Working Group to “review the ways in which” mediation is “encouraged and positioned within the civil justice system.” In October 2017, the Working Group issued its “Interim Report.”
The Interim Report evaluates pros and cons of mandating mediation as a way to promote a greater use of mediation.
Here is the list of pros and cons for mandated mediation, as prepared and presented by the Working Group in its Interim Report.
“In general terms the usual arguments for mandatory mediation are these:”
1. Mediation “is capable of conferring huge benefits on disputants and on the civil justice system.” If litigation “should be the last resort,” then “we need to make it the last resort.”
2. The “voluntary” use of mediation is disappointingly slow and small. However, a mediation culture develops by “’doing’ rather than ‘learning.’” So, changing rules, “even temporarily,” to require mediation “really can change the culture.”
3. “It is impossible to tell in advance which cases will actually settle and which will not.” However:
–experienced mediators “feel strongly” that “mediation will be effective” in settling a “majority of cases”; and
–at the very least, mediation “will shorten or help to focus” the cases that do not settle.
4. “If you let the parties” argue about whether to mediate or not, “they will do so”; and they will argue, generally, “for tactical/positional reasons.”
5. Mediating parties “are never under an obligation to settle.” In mandated mediation, they are under, only, “an obligation to attend and participate in good faith.” They are “always free to go back to court burdened by, at the most,” mediation costs and a slight delay.
6. “There is no convincing evidence” that mediation is “less successful when compulsory.” Experience shows that:
–parties who attend mediation under compulsion and “unwillingly (for example by contract terms)” often “engage in the process and settle their disputes”; and
–“In the period after” a mediation-sanction decision from a U.K. court, “when parties felt they had to mediate or risk a costs sanction,” there was “no sense that settlement rates dropped.”
7. “Sometimes” parties are “quietly relieved” when under compulsion to use mediation and do not “have to propose it,” because of a sense that proposing mediation “might lead an opponent to suspect weaknesses in their case.” In such cases, compulsion “gets rid of the ‘who blinks first’ issue.”
8. England and Wales already have a number of mediation processes that are “effectively or actually compulsory.” Accordingly, that Rubicon seems “to have been crossed a number of times already.”
“In general the arguments usually advanced against mandatory mediation are these:”
1. It “taints the voluntary ethos which is ‘the hallmark of mediation’s success.’”
2. It “pulls unwilling parties into an unfamiliar process,” which reduces the “chance of succeeding” and brings “the whole process” of mediation “into disrepute.”
3. It “has to be paid for by the parties or the state,” and such costs “will in many cases be wasted.”
4. Its costs “may well be disproportionate” for many types of cases. “Even a fee of £100, for example, “will be impossible in many small claims cases.”
5. Its compulsion means that “any claim however worthless” will “involve expense and hassle,” which creates “an artificial nuisance settlement value for spurious claims.”
6. Its “likely consequence,” if mandated (as “some overseas experience seems to show”), is to “produce perfunctory, box‐ticking mediations” that “go nowhere.” And, because of privilege issues, policing “a requirement of good faith participation” and proving a violation can “be enormously difficult.”
7. It “may be a breach of the parties’ Article 6 human right of access to the court.”
8. It may, as a practical matter, end up being imposed upon “cases in which there is no real dispute,” such as “the undefended money claims” that “make up the majority of claims.”
What do you think of this listing of pros and cons prepared and presented by the Working Group?
–Is it an accurate listing?
–Is it a complete listing?
–Which of the lists do you find more compelling: the pros or the cons?
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I agree with virtually everything you state but I would a couple of thoughts.
First, we have a system for the resolution of disputes that presently is mandatory. You must engage in an adversarial, time consuming and costly process if the other party wishes to begin the process. Mandating them to sit down with a mediator, hear about the process and begin discussing the issues has no down side.
Secondly, they can be mandated to begin a process understanding that they can stop if they wish..
Third, some participation enables the parties to hear each other (twice with the mediator reflection) and learn directly what is important to the other side. So, if there is no agreement the issues will narrow as well as the parameters of the resolution. This make the court case easier to present more efficient to process and ultimately easier resolve by a judge as the issues have narrowed..
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Thanks, Mark, for your insights on this!
Excellent, thought provoking article. It succeeded in making me open to mandatory mediation in certain situations, which previously seemed to me like a contradiction in terms. When mediation is mandatory, I would want both parties to have a top rate orientation that included disclosure that mediation is ordinarily “voluntary” but in this situation used with the intention of helping and saving them money.
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Thanks, Charles, for your thoughts on this.
No matter how you dress it up compunction is really the operative word here, if you want to make mediation mandatory it is then no longer mediation. Both the essence and integrity of the process lie within the volantry element, clever packaging will not hide this, compulsion may to some suggest a perceived power-imbalance from day 1 (the box ticking argument). And may also taint the perceived impartiality of mediators (unintended consequencies). In England (UK) the mediation training sector appear to be for mandatory mediation, perhaps they are more concerned about their market volume (profit) than fair and impartial delivery? It would in my view, be better to make arbitration mandatory and promote mediation as genuine ADR wholly voluntary. Ian Jenkins
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Thanks for your comment, Ian. Question: What is the source of the idea that mandatory mediation “is no longer mediation?”
Mandatory mediation following ex parte applications for emergency civil protection injunctive relief to prevent risk of harm, injury on claims of non-physical or physical abuse, interference of right to privacy, and harassment, threat claims thereby affords an excellent avenue for the parties to stipulate to mutual no contact. In this way, the parties agree to disagree, violence can be prevented, costs and expense of an full, evidentiary preliminary injunction hearing avoided, and therefore both sides frequently get out of court quickly, In my experience, mediation leaves most generally satisfied with their self-styled, low budget remedy. In all, it affords litigants in such cases, generally and soecifically a rare window of opportunity to achieve a swift end on a ‘win-win’ post or pre- litigation agreement which emerges by out-of-court, party-driven settlements.
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