With mediation offering numerous advantages to those who partake in it, it has been embraced in various legal jurisdictions as a necessary preliminary step before resorting to litigation. What impact has this adoption had, and what drawbacks might be encountered if its scope were to expand? 

Addressing the Growing Backlog in UK Courts 

The backlog in UK courts has become an escalating concern for the justice system. How could the implementation of mandatory mediation assist in alleviating this issue? Mediation is one of the key tools within alternative dispute resolution, as elaborated in the Jackson ADR Handbook, 3rd Edition. In most instances, civil litigation proves to be a costly, time-consuming, and emotionally taxing ordeal for the involved parties.

Mediation offers an effective means to circumvent these challenges, steering the dispute away from the dichotomy of “win or lose” typically associated with contested trials. 

Compulsory mediation has the potential to reduce the burden on the justice system (though with certain considerations, as discussed below). Studies have shown that mediation can achieve an 80% success rate in resolving disputes on the first attempt, and even higher success rates on subsequent tries. 

However, it’s vital to distinguish between the obligation to attempt mediation and a genuine commitment to reaching a settlement in good faith. The notion of an “agreement to mediate” was clarified in the case of Little v Courage, where Millett LJ emphasised that such an agreement necessitates parties entering it with sincere intention and following a structured process with an uncertain outcome. Imposing mandatory mediation is unlikely to alter the attitudes of disputing parties unless they comprehend and appreciate the potential benefits.

One can compel participation, but one cannot compel a genuine desire to resolve matters—a true understanding of the value of professional mediation is required. 

Additional Benefits of Implementing Mandatory Mediation 

Mediation is a confidential process, with rare exceptions dictated by legal requirements. This confidentiality proves crucial in disputes that may entail maintaining an ongoing relationship between parties or protecting reputations.  

While compulsory mediation alone may not resolve every aspect of a dispute, particularly when legal rulings or judgments are necessary, it does alleviate the courts’ caseload. This, in turn, allows the allocation of court resources to cases that are unable or unwilling to resolve through mediation.  

The boundary between strongly encouraging mediation and making it compulsory is fading. Bringing parties to the mediation table yields societal benefits and enables solutions that transcend what litigation can offer. 

Mediation has demonstrated its effectiveness, with an 80% success rate on initial attempts, and even higher on subsequent ones. 

Courts typically render decisions as “win or lose” and often involve monetary awards. Mediation, on the other hand, offers more creative solutions. These solutions can encompass maintaining a relationship, offering an apology, proposing different or ongoing services as part of the agreement, or simply providing a platform for one party to express grievances to the other. Transformative mediation aims to alter the relationship between parties—something that courts cannot achieve.

Monetary settlements are only one aspect; as Winston Churchill noted, “The best evidence of the fairness of any settlement is the fact that it fully satisfies neither party.” The peace of mind gained by disputing parties, enabling them to move forward in their personal and professional lives while shedding the stress of a court appearance, should not be underestimated as a significant benefit. 

On the flip side, what challenges come with making ADR a mandatory prerequisite for litigation? 

Incorporating compulsory mediation into the litigation process, from dispute to judgment, carries consequences that may not always be advantageous. If mediation is undertaken without full knowledge and good faith from both parties, it can become a barrier to justice—a mere step to endure instead of a comprehensive alternative to expensive litigation. It’s more constructive to view mediation as a parallel process rather than a hurdle to clear on the way to litigation.  

While a sensible and efficient process often results in settlements at lower costs, any misunderstanding or misuse of the process can obstruct justice. The primary downsides of mandatory mediation include: 

  • Unsuitability for All Cases: Not all disputes are appropriate for mediation. The evidence suggests that most are, but exceptions exist where a ruling or precedent may be required. 
  • Restricting Common Law Development: Mandatory mediation could potentially stifle the evolution of common law. 
  • Transparent Opt-Out Process: A transparent and robust opt-out mechanism would be necessary for cases unsuitable for mediation. 
  • Resistance: Parties can be compelled to mediate, but they cannot be compelled to agree. If one party is resistant, achieving agreement is unlikely. 
  • Standards of Mediation: While standards are maintained by regulatory bodies, they are not formally integrated into the court process. Consideration must be given to how these standards can be upheld. 
  • Power Imbalances: The balance of power between parties can be a concern, especially when one party stands to benefit significantly more from a settlement. 
  • Confidentiality: Mediation is confidential, whereas court proceedings generally are not. If mediation becomes a compulsory step toward litigation, issues of confidentiality and unbiased discussion must be addressed. 

Can compulsory mediation align with Article 6 of the European Convention on Human Rights and the right to a fair trial? 

Rupert Jackson’s stance on compulsory mediation is clear: “Mediation should be encouraged but not made mandatory.” It should be seen as a parallel process to litigation rather than a sequential step leading to court. 

The Effects of Mandatory Mediation in Other Jurisdictions 

In various regions, compulsory mediation has already been embraced. What observable outcomes have resulted from this approach? It could be argued that in some areas of UK law, compulsory mediation is already a reality. Courts possess wide-ranging authority to award settlements and costs in a manner that reflects a mediation-centric approach. As more precedents are established, the trend becomes increasingly prescriptive.  

In 2008, the European Union issued a directive aimed at promoting mediation in cross-border commercial disputes. Italy has opted for compulsory mediation, as have Canada, Singapore, Australia, and parts of the United States. In general, these jurisdictions have witnessed a high rate of resolved disputes when mediation is mandated. 

Mandatory mediation is already evident in the UK, with clear pre-action protocols that disputing parties are expected to adhere to. In family court, parties must attend a Mediation Information and Assessment meeting before initiating court proceedings. In employment cases, access to a tribunal is contingent on early ACAS reconciliation. Undoubtedly, the trend toward greater encouragement and, potentially, compulsory mediation will continue to gain momentum. 

However, the experiences in jurisdictions that have adopted full compulsory mediation requirements are mixed. While impressive settlement rates have been achieved, not every case is suitable for mediation.

Many legal professionals argue that compulsory mediation denies access to justice through the court system, masking this issue with the impressive rate of settlements.

In Canada, mandatory mediation expedited litigation by narrowing issues, particularly in complex cases—a clear advantage. Yet, the quality of settlements, especially in straightforward cases with a power imbalance, was found lacking. Trials provide formal safeguards, advocacy, and witness statements, whereas mediation’s success largely hinges on the mediator’s skills, training, and trusted abilities. 

 How Can the Use of Mediation in the UK Be Enhanced Without Compromising Its Benefits? 

In the UK, there are growing calls for mediation to reduce the cost, time, and stress associated with disputes that often lead to litigation. Both compulsory and encouraged mediation come with advantages and disadvantages. In my perspective, the following steps should 

Discover the Power of Mediation with Roger Levitt 

As one of the leading Elite Mediators in the UK, I am passionate about the transformative power of mediation. With a proven high success rate, mediation offers a fresh and more intelligent approach to resolving legal disputes, whether they involve business matters or property issues. Say goodbye to the costly and emotionally draining court process. 

To learn more about how my mediation services can help you achieve a swift and satisfactory resolution, please don’t hesitate to get in touch. Reach me at 07776 141 717 or send an email to roger@rogerlevittmediation.co.uk. Let’s work together to find the best path to resolution for your unique situation.