Mediation: What Chance An Increased Element Of Compulsion?

The Civil Justice Council ADR Working Group recently considered ways in which the use of mediation could be encouraged in civil disputes, but are we any nearer to extending mandated mediation beyond its current limited parameters?

Persuading parties to mediate is not working anything like as well is it should be, certainly in regard to cases of modest value which appear to be defined as cases worth between £25k and £150k, this despite the fact that the CPR have been in place for nearly 20 years and ADR was always at the heart of the CPR.

At the coal face, what often inhibits parties from mediating or achieving a mediated solution in modest value cases is the vexed issue of costs. Diligent hourly billing at substantial hourly rates has become the business model throughout the land. Gone are the days of charging according to what the case and client can stand. Thus, heavy costs are racked up and often prove the deal breaker to a mediated solution – in contrast to where costs are modest vis a vis what is in issue, where a mediated solution is easier to achieve.

The CJC suggest that a major problem is that ADR is “not familiar to public the and thus culturally normal”. What is ever “culturally normal” about litigation in the first place? Most people are fortunate to go through life without ever becoming involved in civil litigation. To those who do find themselves so embroiled, it is akin to arriving on a distant planet where the professionals speak a different language. Factor in all the emotional processes associated with a dispute, not to mention the inevitable antagonism, belief that you are right and they are wrong and that you are the wronged party and “it is the principle that matters” and there is nothing remotely “culturally normal” when your lawyer then suggests that after all it might be best to achieve some sort of mediated middle way.

Persuading the client to mediate can be far from easy. As a mediator, breaking down the barriers to a mediated solution and getting the parties to warm to and then embrace the process can be the most difficult part.

So, whilst mediation is part of the litigation culture from the perspective of the legal profession, it is unlikely that it will ever become culturally normal to the general public which means that if it is to take hold, an increased element of compulsion may be the only way.

The CJC identified three possible formats:
1. Engaging in ADR as a pre-condition of commencing proceedings.
2. A requirement that in certain types of cases at least, the parties engage in ADR at or by some specific point in the the course of the case.
3. A power to the court to require unwilling parties in a particular case to engage in ADR on an ad hoc basis in the course of case management

All very interesting but in the light of Lord Briggs’ CCSR Report and recent observations by the Court of Appeal in Gore v Naheed [2017] EWCA Civ 369, compulsion won’t happen anytime soon.

In this writer’s view, a power vested in the Court on an ad hoc discretionary basis, preferably earlier than later in the process, to order mediation where it sees fit would go a long way to solving some of the currently perceived failings.