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Compulsory Mediation: A step too far?


United Kingdom

It may be that the Court service is one of few institutions apparently dedicated to putting itself out of work. It spends much of its time attempting to invent methods to deter or to prevent intending litigants from using its systems. The latest suggestion is that mediation, its favourite child, will become a compulsory step in the litigation process. Parties would be required to prepare for, attend at, and participate in the mediation process, though obviously they cannot be forced to compromise their action.

Parties to litigation are already subject to a duty to consider the use of alternative dispute resolution throughout the litigation process. The sense in avoiding adversarial litigation is not to be doubted; it can be slow, cumbersome, expensive and damaging. Individuals and businesses are at best diverted and at worst may be ruined. The prospect of litigation can be so dreadful that parties with valid claims may be reluctant to pursue them. Parties with weak cases may feel they cannot extricate themselves. But is compulsory mediation the answer to the problem?
The variety of civil litigation cases is quite extraordinary, and imposing a single rule expected to cure the ills of every one is probably bound to fail, if only by reason of that diversity. By way of example, cases may range from minor debt collecting claims, through neighbour disputes, personal injury claims, claims against the police and the State, to the most complicated contractual and multijurisdictional claims for huge amounts of money and the right to use tangible and intellectual property. The interests of parties in such claims are very different, though each must be preserved and respected.
If parties know from the outset that they will be required to submit to mediation, the effect on them will differ with the nature of their case. A litigant may see it as a barely comprehensible but predictably unaffordable additional layer of complexity which may deter her from pursuing her remedies. Another might see it as no more than a waste of time and money in a case which demands a court determination. Lawyers may find themselves arranging mediation because they are required to, but with more interest in reducing costs and delays than undertaking a worthwhile step in the case.
The courts are happy to strike down legislation introduced by the Government to impose single rules intended to cover every situation, in favour of encouraging procedures which give attention to the particular interests and requirements of individuals. But here they are falling into that very trap. It may be that mediation can provide a route to a sensible solution in many cases, and it may be that there will be a time in many cases where parties do want to make an easy exit. As Sir Geoffrey Vos, Master of the Rolls and Chair of the Civil Justice Council has said, in most disputes there is a “sweet spot” when a party recognises the attraction of a consensual resolution. However, the problem with basing rule changes on this assumption is that the time when the parties might welcome such a resolution will differ. What might make one party ready to settle might make the other more confident in the strength of their case, and so refuse to settle.
It seems that the mistake which the Civil Justice Council is making is to assume that if a case is not subject to mediation, then it will proceed to court; as any current practitioner knows, that is quite wrong. Just as a party is subject to a duty to continue to consider mediation through the course of a case, so that party will want to look for opportunities to settle. Parties and their advisers are already providing the necessary mechanism to avoid cases reaching court, spurred on by simple self-interest, or potential court sanction, without the need for the imposition of compulsory mediation. It is correct to note that this may not apply to certain forms of action, particularly where parties are not represented, but it cannot be right to make major changes to a functioning and effective system in an attempt to cure the problems of a few.

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Areas of Expertise

Dispute Resolution