Mediation is a voluntary collaborative process where individuals who have a conflict with one another identify issues, develop options, consider alternatives, and develop a consensual agreement. When parties choose mediation as their dispute resolution process of choice their voluntary attendance and participation is assured, and their right to withdraw from the process is assured. Mandated mediation is either voluntary or compulsory – participation is always voluntary.
Is Mandated Mediation a Contradiction in Terms?
Sir Anthony Clarke, Master of the Rolls at the time in the UK, using the analogy of taking the horse to water said “The more horses approach the trough the more will drink from it”.
Internationally there is a trend towards Court referral of civil cases to mediation.
Is This Too Broad a Brush?
In this jurisdiction currently the Rules of the Superior Court November 2010, taking account of EU Directive Art 5, under rule 65A,now allows the courts to refer parties to mediation, at the request of one of the parties, or on their own motion. Under this rule Ms Justice Clarke referred the Kenny v Charlton case to mediation and a long drawn out dispute was resolved in one day.
In McManus v Duffy (2008) Mr Justice Feeney, on the request of one of the parties, referred the parties to mediation on the basis that it would be “likely to assist”, a low threshold for court referred mediation, perhaps too low for mandating.
Judge Peter Kelly, who routinely referred Commercial cases to ADR processes says that he “cannot compel parties to mediate, it is probably wise that I shouldn’t, as if mediation is to be successful there has to be at least an element of goodwill.”
Lord Dyson in the UK in Halsey (2004) applied sanctions to a party who refused an offer of mediation, but baulked at compelling mediation, referring to Article 6 of the ECHR.
This caused much discussion, and in a speech made at CIARB’s symposium in November 2010, following CHJ case Rosalba Alassini (2010), pulled back on this, accepting that access to justice is not denied by mandated mediation, but is merely delayed. He also says that voluntary nature is not undermined by mandating as the costs would not be great, the outcomes are only binding by agreement and there is provision for stopping the clock, but cases must be appropriate to the forum.
Lightman LJ said, Mediation is a necessary palliative, however the judgement in Halsey is an obstacle to mediation, and further “an order for mediation does not interfere with the right to a fair trial as parties may be allowed to prepare for trial during mediation”.
However, Lord Dyson still considers Forfeiting access to the Courts, as happens in Italy when parties refuse to Mediate, may prove to be a breach of Article 6 ECHR.
In his article “Fitting the forum to the Fuss”, Sander says Mediation is not a panacea, not to be used just to ease court lists, but where it can assist in the resolution of a dispute.
Professor Hazel Genn says that the outcome of ADR orders are generally thought to have a positive or neutral impact on settlement, however she fears the marginalising of the courts and the development of jurisprudence.
The Central London County Court operated a voluntary, low cost mediation service to civil litigants. In 2004 -2005 it operated a pilot program of “Automatic referral”. This is now a permanent feature. The court selects appropriate cases, parties must justify reasons for refusal to mediate, if the court does not accept the reasons it may refuse to hear the case or impose cost sanctions.
In Exeter County Court 90% of users said using mediation was positive, even if they did not settle. (Law Society Gazette)
In Day v Cook, Ward LJ said he despaired at the refusal of the parties to mediate, and in Egan v Motor services Bath he said they must be Cuckoo not to have availed of mediation.
Following from the Woolf report in the UK the Civil Procedure Rules (CPR) and The Solicitors Conduct Rules 2007 required Solicitors to discuss with their clients whether litigation or some other form of DR would be appropriate in their case.
Ungley Orders, allowed for the staying of Litigation proceedings in order to avail of mediation in Medical Negligence cases.
Many Jurisdictions in the EU now favour court mandated mediation. Italy, Greece, Belgium, and some of the German Fedral States are in favour, though not all have legislated for it.
The USA, Australia and Canada have accepted compulsory mediation for some cases, and in NSW, where mediation is well accepted by the public, the courts will not allow some cases to proceed with Litigation until Mediation has been attempted.
Scotland seems to be an exception to the general rule. The Courts do not seem to have any appetite for mediation.
Ireland: The draft Mediation and Concilliation Bill 2010 awaits publication, when that happens it may specify mandating of particular cases, as Ireland is inclined to follow the UK in these matters.
The Legal profession will probably have to embrace mediation in the long run, and rather than taking a neutral stance with their clients, they may be obliged to encourage it, or they may incur the wrath of the Judiciary, and sanctions.
Conclusion: Though there are dangers in mandating mediation as a blanket rule, some types of cases are particularly suitable for mediation, and mediation services have been developed in many jurisdictions for appropriate cases in Family, Employment, Landlord Tenant, Medical Negligence, Personal Injury and even Boundary disputes. Consumer cases could benefit from mediation, however the power balance would need to be considered.
The principal of voluntarism in mediation does not stand alone, the other principals of mediation overlap with it, if one is impaired, all will hurt, and consent is at the heart of it.
The interests of the parties must remain paramount. If disputes have to happen, and solutions have to be found, litigation is almost never ideal for cases where the maintenance of relationships is concerned, one Judge talks about the willy-nilly manner in which Lawyers deal with cases, it is not a zero sum forum.
Disputing parties do not have an obligation to create good law, and despite Hazel Genns’ concerns, which seems to be the Puplic Policy argument, this should not be a reason to exclude mediation as an adjunct to Litigation, which according to one Judge was only ever meant to be a last resort.
Colman J in Cable and Wireless said to not honour an ADR clause would be to fly in the face of Public Policy.
However, it is not about public policy, or creating jurisprudence, laudable though these ideals are, it is about Human rights, but with the emphasis not on rights but on humanity and human relationships, and although Mediation cannot be a cure all, and mandating mediation may work against the process, it can play its part in the resolution of disputes, with respect for the dignity of the parties. We cannot hold back the tide.