As a result of the current Covid-19 crisis, the backlog of cases is mounting, despite HMCTS’ commendable efforts to re-open courts and implement access to video, hybrid and telephone hearings. There are also reports of the crisis precipitating more cases than normal. Property possession claims wait in the wings, family and domestic abuse enquiries with solicitors are up. There are parties with unfulfilled contracts and employees who believe they have been unfairly treated. Given the risk posed to the rule of law and to access to justice, it is reasonable to suggest that new ideas might be needed.
There could be no better time to consider a greater role for mediation. While family mediation is part of the established process and in civil cases there is an expectation that parties will offer and be open to mediation and may be penalised financially if they do not, it is not mandatory. So, should we make mediation a mandatory step before allowing litigation to reduce the work for an overloaded legal system?
What is compulsory mediation?
Professor Frank Sander, an expert in dispute resolution suggested that requiring parties to enter mediation, was a permissible practice, whereas requiring them to reach an agreement in mediation was an impermissible form of coercion. Whilst some of the debate about compulsory mediation has confused the two, we will focus here on the permissible rather than the coercive. Broadly, there are three types of mandatory mediation:
1. Automatic and compulsory referral as a pre-requisite to commencing proceedings. This system is in use in in Italy.
2. Court-referred mediation. A judge refers parties to mediation with or without their consent. This is used in Australia.
3. Quasi-compulsory. Although not mandated, the effect is achieved through the potential for cost orders if ADR is not undertaken before bringing a case to court. This is effectively what we have in England and Wales.
Let us look briefly at all three.
Automatic compulsory referral
This is essentially the system in Italy, although the Italian system goes beyond simple compulsion in that if no settlement is reached, it permits a mediator to propose a solution to the parties which must either be rejected with reasons or accepted. This is the case even if one of the parties fails to appear. If nothing else, this does tend to ensure attendance.
Court referred mediation
Australia has several successful mandatory mediation schemes. Courts in Australia also have wide discretionary powers to order mediation without the parties’ consent. There is open judicial support and the process is often that of court-annexed mediation which is carried out by a court officer or a judge.
Quasi- compulsory mediation
Australia has also introduced quasi-compulsory mediation and (in New South Wales) has an ADR (Alternative Dispute Resolution) blueprint, recommending the use of ADR by government bodies and including an ADR Clause in government contracts. This has also happened in the UK.
The case for compulsory mediation
The Civil Justice Council ADR Working group Report (2017) lists the main arguments in favour of compulsory mediation as being:
1. ADR brings huge benefits
2. Voluntary uptake is slow and small – changing rules even temporarily could change culture
3. If you let parties waste energy and money arguing about whether or not to mediate, they will
4. The parties are not obliged to settle, only attend and participate in good faith
5. There is no evidence that mediation is less successful when compulsory
6. Some parties are relieved to feel externally compelled as voluntary proposal might look like weakness
7. There are already compulsory ADR processes in England and Wales – e.g. family MIAMs (Mediation Information and Assessment Meetings).
The report itself is relatively positive about implementing pre-action compulsory mediation, although this was not the majority view as I have set out below.
The case against compulsory mediation
The Law Society has told the Civil Justice Council that it should continue to steer clear of mandatory ADR, saying it would “frustrate the principle…” that litigants should have open access to the courts. That said, they stated that there was a good argument for active case management and for the judiciary to encourage ADR once the claim had been allocated.
In Halsey v Milton Keynes General NHS Trust  4 All ER 920, the court held that courts do not have the power to order parties to mediate against their will. They used the question of whether compulsion constituted a breach of Article 6 ECHR (European Convention on Human Rights), deciding that access to the courts was violated by compulsion to mediate. Lord Dyson did however determine that while courts could not order mediation, they can mandate a cost order on the basis of an unreasonable refusal to mediate. The European Court of Justice would seem to disagree. They ruled in the case of Rosalba Alassiniv Telecom Italia SpA (Legge 31 Iuglion 1997) that a cross-border scheme imposed by Italian law did not create a breach of Article 6 (1) ECHR. Possibly a moot point as a result of Brexit.
The Jackson report (2009) stated that mediation was a, “highly efficacious means of achieving a satisfactory resolution of many disputes”, but that what was needed was a “culture change not rule change.” The Jackson report went further stating that, “parties should never be compelled to mediate.”
The English legal system has already conducted an experiment in compulsion. The ARM (Automatic Referral to Mediation) pilot scheme ran in 2004/2005 and ultimately failed. The experiment randomly referred 100 cases each month to mediation. The results were that only 22 per cent had a mediation appointment and in 81 per cent of cases at least one party objected to the case being mediated. Some have suggested that the Halsey decision had a negative bearing on the trial.
The introduction of compulsory mediation in Italy has met with criticism. There is evidence of fewer settlements because the mediation authority cannot cope with demands. The Italian legal profession has also been heavily negative. However, in the Italian system the mediator can impose a decision. It might be argued that this type of compulsion removes the requirement for a mediator to be bipartisan and for the parties to be able to walk away, thereby moving the process into one described by Professor Sandler as being a form of coercion.
The Civil Justice Council ADR Working group list the main arguments advanced against mandatory mediation as being:
1. It taints the voluntary ethos
2. It has to be paid for by the parties or the state, often this will be wasted costs
3. The cost may be disproportionate in smaller claims
4. Compulsion means any claim, however worthless, will involve expense and hassle
5. It may result in a perfunctory box-ticking exercise – good faith is impossible to police.
6. There remain Article 6 issues in relation to access to the court system
The working group concluded that, having weighed both sides of the argument, they cannot come down strongly on the side of compulsion. As already suggested, a significant minority of group members did believe the idea had potential. This perhaps demonstrates that there is no clear answer.
Evidence as to the effectiveness of compulsory mediation schemes versus those which are voluntary, is at best scant. There are no scientific studies. Comparisons between different schemes in different subject areas, or in different countries are problematic.
The case for mandatory mediation is not proved. There are tantalising glimpses of success, but these are not universal. There are, it would seem, areas of law and jurisprudence where the idea lends itself better than others. Boundary disputes and clinical negligence are two areas where ADR is very successful and far preferable to litigation. Perhaps targeted compulsion in similar areas would be effective, such as residential landlord and tenant disputes and other types of domestic contract. Accessibility of ODR (Online Dispute Resolution), is increasing and offers a better price and convenience model for small claims.
I suggest that mediation is to law, what physiotherapy was to medicine 30 years ago. The benefits can be huge, but it requires confidence, leading to wide up-take and then government intervention to make its prescription mainstream. Should the UK bring in mandatory mediation? Probably not. At least not until or unless it forms part of our culture to seek mediation rather than litigation.
In the meantime, the court system is struggling. If you have are involved in a dispute, remember that not only does mediation offer a good prospect of reaching a resolution, it keeps the outcome in the hands of the parties, rather than the court, can be significantly cheaper and can save a lot of time. Becket Chambers have a team of qualified and experienced civil, commercial and family mediators who can assist. If you require advice do not hesitate to contact firstname.lastname@example.org.
I have made reference to several reports and other published material in this article. I am happy to be contacted by anyone wishing me to forward my references, or who wishes to discuss the ideas herein.