Mediation: The long, long wait

Mediation has gathered credible momentum since it was brought to prominence in the wake of the Woolf reforms. These past few years, however, it appears to have reached a plateau.

It has been successful in large commercial cases and in lower-value claims, but there is still a big gap in respect of mid-value claims. And if the difficulties encountered with MIAMs in family law are anything to go by, we’re still a long way away from widespread adoption of ADR. The advantages of mediation are well known. Advocates of this friendlier, cheaper, positive alternative to litigation regularly, and convincingly, explain its benefits. The trouble is that mediation is not compulsory.

We hear about mediation when exasperated judges admonish battle-hungry litigants for not considering it. A few years ago a spate of neighbour disputes that escalated to the High Court prompted Lord Justice Mummery to issue several warnings about the financial and human cost of litigation. To little avail, it seems: the courts are now filling up with litigants in person when the government had calculated that the legal aid cuts would steer them towards mediation instead.

This week, mediation supporters took matters into their own hands. They organised Mediation Awareness Week, the first time such an event was held in Britain. Lawyers, mediators, and others involved in the dispute resolution process got together in a series of events throughout the week to discuss the issue. It’s undoubtedly a worthwhile initiative but it’s also indicative of the significance of the problem. Outside mediation circles, nobody knows about mediation, and there are no genuine incentives to choose it over litigation. The time has come to speak the unspeakable and consider making it compulsory. The idea is already getting traction with lawyers in relation to low-value disputes.

Most mediators will tense up at the thought. It’s precisely the voluntary nature of mediation that makes it what it is. Making it compulsory would empty it of its very essence, they say. Some also argue that forcing parties into mediation would be an attack on freedom of choice. This is not an acceptable argument. There must be ways to maintain freedom of choice while helping litigants see reason.

The numerous low-stake disputes successfully resolved through mediation suggest that a key feature of the process is to engage with users using ordinary language rather than technically accurate but off-putting terminology. This helps focus on solutions rather than on the confrontation.

Fledgling attempts at online dispute resolution mechanisms have highlighted another important aspect. It doesn’t matter what the process is called as long as it delivers the best possible outcome. It doesn’t even need to be called mediation or anything at all; it simply becomes a process to address a grievance or claim. Online simply becomes a neutral interface. It takes away the emotion which often drives litigants into the pursuit of hopeless or destructive claims. Dealing with emotion is important too, but the dispute resolution process is not the place.

At present, however, the system is all stick and no carrot. The current pre-action protocol and practice direction empower judges to impose cost penalties on parties unreasonably refusing to engage in mediation. Judges have played an important part in pushing that point home. By that stage, however, it’s too late. Specific measures are needed for mediation to take off and become the norm. In his opening remarks at the launch of Mediation Awareness Week, Lord Justice Briggs called on lawyers and the judiciary to work together on solutions to make mediation mainstream. There is willingness. What’s needed now is a set of workable proposals.

Jean-Yves Gilg is editor in chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg