As mediation comes to play an ever-more important role in our legal system, we have been expanding our mediation department. This article looks at why we decided to get ready for the future.
Mandatory mediation is determined lawful and should be encouraged.
This was the conclusion of a report published by the Civil Justice Council (CJC) in July 2021 titled ‘Compulsory ADR’.
The CJC is responsible for overseeing and coordinating the modernisation of the civil justice system, and so with this report comes the suggestion that mandatory mediation may be the future.
In light of the seemingly inevitable move towards mandatory mediation, we thought we’d run through what mediation actually is, its current place in the justice system, the findings of the CJC report and what this all means for the future.
What is mediation?
Mediation is a form of alternative dispute resolution (ADR).
A neutral, independent mediator helps parties resolve a dispute and reach a settlement between themselves outside of court.
It’s not about deciding who is right and who is wrong, it’s about coming to a solution that everyone accepts.
Although mediation is done outside of court, it’s not an either/or situation. Mediation is flexible, it can be done at any time during the litigation process, so before or even during court proceedings. Parties are able to proceed or continue to court if mediation fails.
What is mediation’s current place in the justice system?
Mediation is currently voluntary in the UK, with some minor exceptions. Over the last two decades, meditation has increased in use. With a settlement rate of 93%, lower costs and quicker resolutions, more and more people are turning to mediation rather than waiting their turn in a backlog of court cases caused by a lack of funding in the justice system, and compounded by Covid-19.
Although mediation is voluntary, it is actively encouraged by the courts and costs sanctions can result from unreasonable refusal to mediate.
But in the past year, the idea of making mediation mandatory has gained traction, with senior judge Sir Geoffrey Vos, recently appointed Master of the Rolls and Head of Civil Justice, stating that “Mediated interventions may be integrated into the process so that [ADR] is not seen as a voluntary add-on.”
And so, this brings us on to the CJC report, commissioned by the Master of Rolls.
What are the findings of the CJC report?
The report looked into the original decision made by the Court of Appeal in 2004* that concluded ADR could not be compelled but could be strongly encouraged.
This conclusion was heavily based on the belief that mandatory ADR could breach Article 6 of the European Convention on Human Rights which states that everyone has a right to a public trial.
But the CJC report has taken a different view.
The report addressed two questions:
- Can the parties to a civil dispute be compelled to participate in an ADR process? (The “legality” question)
- If the answer is yes, how, in what circumstances, in what kind of case and at what stage should such a requirement be imposed? (The “desirability” question)
The CJC’s answer to the first question was that mandatory ADR can be legal and compatible with Article 6, so long as it wasn’t ‘disproportionately expensive or took an excessively long time, or was otherwise burdensome’.
In answer to the second question, the report concluded that, when deciding whether to make ADR mandatory in a case, cost, time and access to professional legal advice ought to be considered. So, if any cost and time is proportionate, mandatory ADR can be lawful and desirable.
What does the future hold for mediation?
As long as parties retain the right to a court hearing, the CJC concludes that greater use of compulsory ADR is justified and ought to be considered.
Although the CJC believes more work needs to be done to determine what types of claims and in what situations compulsory ADR would be appropriate and most effective, this report suggests meditation will soon be seen as an essential part of the litigation process, rather than an alternative.
In response to the report, Sir Geoffrey Vos said:
“As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”. This report opens the door to a significant shift towards earlier resolution.”
We see a future in which mediation is mainstream, which is why we’ve made sure we offer the very best in mediation services. Our accredited mediators have unique and extensive expertise in conflict resolution and negotiation. You’re in control of the outcome, what we do is help you explore solutions to reach a settlement that works for both sides.
If you’d like to find out more about our mediation services, get in touch today for a confidential, no-fee initial discussion to see how we can help.
*Halsey v Milton Keynes General NHS Trust  1 WLR 3002