Is Mandatory Mediation Desirable?

by Paul Grimwood

The Civil Justice Council has recently published a report on alternative dispute resolution (ADR) concluding that mandatory ADR is not incompatible with Article 6 of the European Convention on Human Rights.  The objective would seem to be to embed mediation/ADR in the court process such that in effect mediation becomes the default way of resolving disputes with going to trial being rebranded as ‘alternative dispute resolution’. 

It might be said that there is already some compulsion to engage in ADR in the sense that an unreasonable refusal to mediate will usually result in cost sanctions. 

Making mediation mandatory could take the form of preventing court proceedings from being issued until mediation has occurred or that at an appropriate stage after the issue of proceedings the court could order the parties to participate in mediation in the same way as orders are made for the disclosure of documents.  This would presumably have to be on the basis of sanctions being imposed (including the striking out of the claim or defence) if the order is not complied with.  That said it must surely always be open to the parties to re-join the court process if the mediation unusually fails to result in a settlement. 

In the numerous mediations I have conducted I have always felt that it is a positive start that all of the parties to the dispute have voluntarily agreed to get together in the same place at the same time.  If someone is forced to mediate against their wishes will there be the same level of engagement and investment in the process?  

Some parties rightly or wrongly want their day in court and in other situations, one party may need to establish a precedent to use in other similar cases.  The report recognised the need for further work to determine the types of claims where compulsory ADR would be appropriate.  

The conclusion to the report states, “Where participation in ADR occasions no expense of time or money by the parties as with answering questions in an online process as to a party’s willingness to compromise it is very unlikely that the compulsory nature of the system will be controversial”.  This has given rise to some concerns “in the industry” that not only will these mediations be compulsory but also cheap (if not cheerful).  This must give rise to the risk that these mediations will not enjoy the same high success rates as conventional mediations resulting in the ‘mediation brand’ being tarnished. 

If, of course, these new mediations are incorporated into the standard court process, then it is easier to see how both the cost and delay could be kept proportionate to the matters in dispute.  However, one of the advantages of mediation is that the parties get to choose the particular mediator usually based on their reputation and experience in the relevant field of law.  Since, at least in some courts, judges are expected to deal with a very wide range of cases, they may not always have the same detailed knowledge and experience that a chosen independent mediator would have. 

Whilst attempts to encourage the wider use of mediation are to be encouraged, are there better ways of doing it?  If all organs of national and local government agreed that they would always mediate cases whenever the other side suggested it (even if in certain cases, they would not ordinarily want to do that) that would be a start.  The insurance industry could also offer a similar undertaking in cases in which its members were involved.  

There is inevitably a lot of psychology involved in mediations and having one or both of the parties feeling that they have been forced to do something which they genuinely did not wish to do may not bode well for the outcome of mediation.  Only time will tell!

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