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In the constant evolution of civil litigation procedure, mediation has found an expanding role, and the question of if and when to make mediation compulsory is a pressing topic. But that is also a complex and many-faceted question, involving issues of practicality, advisability and legality.
The problem with analysing and, subject to that analysis, amending the current rules, is the nature and breadth of civil litigation itself.
The facts behind cases are so diverse, the parties involved are so different, and any attempt at categorisation becomes so broad and consequently of so little assistance, that it is almost impossible to identify rules which could apply to all.
There is no doubt that mediation can be valuable, allowing parties to engage in the process and to reach solutions which are acceptable to them, probably early in the litigation process, probably saving them cost.
Parties to mediation may feel themselves in control, rather than merely subject to their solicitor or counsel, and mediators may suggest solutions which the parties find acceptable but which a court could not order.
But this is little more than platitude. Unrepresented parties may not understand the concept of mediation and may regard voluntary participation as a sign of weakness; parties to high-value claims may regard it as no more than a tedious procedural layer to be dealt with at the lowest possible cost and with the least possible time wasted.
There is, and always will be, a category of cases – small but often of great importance – where a court hearing is essential. Could a blanket imposition of early mediation ever be appropriate?
Further, it is apparent, if only anecdotally, that the attitude to mediation varies dramatically with the type of mediation under consideration.
While acknowledging that all mediators must be properly trained and accredited, it is inevitable that some will possess more skill than others. A skilled and experienced mediator, like any skilled lawyer, can command high fees and can select the cases they undertake. Parties to such a case will regard the mediation process as something similar to a court hearing of importance, to which they have consented, and in which they want to participate.
It will be held in carefully chosen surroundings, with lawyers present, submissions made, formality observed and decisions reached. This is a very different from the scenario considered in much of the academic work on this topic, where it is assumed that mediators will be provided without charge, at very short notice and for a set and limited period of time, in court or other official premises.
Mediation is, currently and generally, a consensual arrangement. Parties may be required to consider it but cannot be compelled to enter into it (with some exceptions which we do not detail here). Research has shown that If parties agree to mediation, it is because they want to do so. To make the process compulsory may change that; if parties agree to something it is likely they will engage with it, but if they are forced into it, they may be less ready to cooperate.
We think it is necessary for clarity to consider the issue of compulsion in mediation in two distinct areas; the first is for cases where the parties are represented, and the other is for the balance of cases where parties are unrepresented.
A problem arises immediately, since a person may declare he will handle his own case, but later decide to instruct a lawyer, while a person who has been represented may lose that representation.
As to the first part, there is already a duty for parties to consider ADR at the start of an action, and as it proceeds. There is a duty on advisers to bring this to the attention of their clients, on as many occasions as may be necessary.
Our concern in this debate is that those advocating change fail to understand – and so grossly undervalue – the role of the adviser. If the adviser is doing their job properly and keeping mediation at the forefront of discussions, there is no need for any other compulsion in the rules.
The adviser will voluntarily do the job which compulsion might be thought to be required to achieve, and will do it in a way which is uniquely suitable to the particular case. To impose compulsion implies that advisers are not meeting their duty and, further, risks altering the delicate balance between an adviser and client.
For the second part, the argument for compulsion may appear to be stronger since, as noted above, the idea of mediation may be beyond the experience of an unrepresented individual. It is a proper part of the court’s role not to save a litigant from his or her own folly, but to explain at an early stage that litigation is costly and can be damaging. It may seem attractive to identify cases which should not be litigated, for whatever reason.
But there cannot be a rule which applies only to unrepresented litigants and not to others; that would be discriminatory and improper. This shows the difficulty in suggesting that mediation should be made compulsory in certain types of case.
As an aside, and perhaps contrary to the above, some local procedures have been established which do require parties in certain forms of litigation, the majority of whom are unrepresented, to attend for a combined conciliation and case management meeting.
It is made clear to all that failure to attend will result in the claim or the defence being struck out and judgment given accordingly. It has been found that a surprisingly large percentage of parties fail to attend, and a significant number of all cases commenced, perhaps as high as 25%, are concluded immediately.
There is provision for the decision to be set-aside if good reason is shown. It seems that this has not yet been challenged as a breach of Article 6.
Those reading this may be familiar with other forms of alternative dispute resolution; early neutral evaluation, road traffic act protocols, ACAS conciliation and so on. These show that early intervention is practically possible and may be effective.
What seems not to be discussed when the mediation is considered is the simple process of settlement. Just as a competent adviser will draw the client’s attention to the need to consider mediation, so they will discuss the possibility, and probably the advisability, of pursuing settlement.
Because this happens in confidential conversations, it does not allow ready academic study or assessment, but it continues to be the most prevalent and effective means of disposing of civil litigation.
By failing to recognise the significance of this, those studying and advising on mediation and civil procedure rules again underestimate the value of advisers. In many types of litigation the system of settlement discussions and mediation is working well, and there may be a risk that if rules are imposed to cure perceived problems in other areas of litigation they may damage the parts which are already effective.
It is not possible to do justice to this most complex topic in a short article, but perhaps much of that complexity can and should be avoided. If those making the rules have sufficient regard to and respect for those advising, they will see that mediation is being promoted and used, and that most cases settle on some informal basis.
The great majority of cases take only a tiny amount of court time, if any. For the balance, rules requiring an early case management session, with penalties for failing to attend, may suffice. The judge can assess what is required and make suitable orders, including a mandatory order that the case go to mediation. In practice, it is hard to identify any more effective procedure.
This article first appeared in Lawyer Monthly in December 2021.