Reasons Why England and Wales Should Adopt Mandatory Mediation

Introduction

In the field of law, mediation is regarded as a primary form of alternative dispute resolution (‘ADR’). A neutral third party will oversee the negotiations of the case, attempt to enable them to comprehend each other’s point of view regarding the case and provide a solution agreeable by both parties. Mediation can also be undertaken in parallel with lawsuits, in a non-adjudicative pre-eminent approach.

As an alternative method to the current judicial process, mediation can be utilized to settle a variety of typical commercial and civil disputes – including business disputes, small debts, housing issues, negligence claims, boundary disputes, and contractual disputes. Similarly, the process can also be used for family-related disputes, such as dissolution, divorce, as well as Children Act applications. Many countries have already adopted the process as it enables litigants to settle cases outside of court, hence saving valuable time and resources. The government has also shown commitment in using ADR in all suitable cases involving government departments and agencies.

As mediation has shown to be a promising, effective method of solving disputes at all levels, there are heated debates among academics as well as policymakers on whether mandatory mediation should be adopted. Measures and opinions are adopted differently on how mediation should be implemented, whether by promoting mediation as an alternative method, or requiring the parties to undergo mediation prior given access to court. On the other hand, there is resistance by both litigating parties as well as legal professionals to use of mediation. Both sides contain sound reasons such as mediation is not appropriate for all cases, as well as lacking the legal framework to facilitate mandatory mediation.

This essay will first focus on the current civil mediation, family mediation, as well as restorative justice in England and Wales. Additionally, comparisons will be made between the three approaches. Lastly, a conclusion is drawn on why obligatory mediation should not be adopted in England and Wales given its current state.

Current Situation in England and Wales

England and Wales utilize the adjudication procedure to resolve disputes, with an adversarial process involving either a judge of an arbitrator. Mediation was often undervalued, and it was not developed until the Woolf Reform of 1999. Lord Woolf’s report pointed out the flaws exists with the previous system, how the litigation process was overly complex, time-consuming and disproportionate in cost for parties involved. Arbitration has also received similar criticism as it is conducted with similar approach.

Since then, the United Kingdom has seen promoting the use of alternative dispute resolutions, shown in the inclusion of Civil Procedure Rules (‘CPR’), which contained a number of measurements. The CPR requires parties involved in a ligation process to consider whether using ADR would be appropriate at various stages of the case in order to settle their dispute. The ADR reform aims to make the litigation procedure more time-efficient, more universal, and more straightforward for all parties involved.

Methods such as mediation became hailed as the best option as it demonstrates a wide range of benefits, striking a fine balance between litigation and arbitration on one hand, as well as promote effective resolution of disputes. The more recent report by Lord Justice Jackson also dedicated a large section to the discussion of ADR and its benefits, as well as recommending that courts should implement steps to help promote mediation for litigating parties. Despite the various intentions by the government and court to promote mediation, there is no statutory regulation for mediators. Although they are still expected to follow the code of conduct, be insured, trained, and offer complaints process if needed.

The jurisdiction of England and Wales is not a signatory to any agreements and treaties relating to mediation. However, they do apply the EU Directive 2008/52/EC, which intends to facilitate the use of negotiating between parties in cross-border disputes. The government has also partially implemented the Directive by ratifying the Cross-Border Mediation and the Civil Procedure Amendment Rules 2011. These regulations are, however, merely pertinent to cross-border disputes.

The CPR advocates that before proceedings, parties should always consider ADR at the outset. Although there are many renowned organisations that conduct ADR – such as Civil mediation Council (CMC), CEDR and UK Mediation – there are currently no public organization that undertake mediation. These organizations provide some quasi-regulations and uphold the high standards in the free market loom, which fills the vacuum created by the government’s lack of direct mediation services.

Civil Mediation, Family Mediation, and Restorative Justice in England and Wales

Civil mediation is used to solve any form of dispute apart from family in most circumstances. It is a voluntary process that involves civil applicants reaching a consensus through a neutral mediator.

When parties reach a solution through mediation, then the terms of the solution is entered into a written agreement. The legal action will conclude when an agreement has been fulfilled. This agreement is flexible and may include terms that cannot be imposed on by the court. In civil mediation, all parties can choose to enter these agreements voluntarily, and their lawyers are allowed to attend the mediation if all parties consent. Both parties ought to agree on a mediator within ten days. Alternatively, the litigants could approach a designated roster institution to aid in choosing a mediator.

Presently, civil mediation in England and Wales has a relatively unregulated framework. Its engagement is more akin to the traditional voluntary basis. Family mediation, on the other hand, is much more regulated by six associate organizations, which are all members of the Family Mediation Council (‘FMC’). The FMC act as the regulatory body for family mediators in England and Wales. They issue the mediators’ code of ethics and standards, and set and uphold a system guiding mediators’ acceleration, accreditation, training, practice, as well as professional developments.

The FMC defines family mediation as ‘a process in which those involved in family breakdown, whether or not they are a couple or other family members, appoint an impartial third person to assist them in communicating better with one another and reaching their own agreed and informed decisions concerning some, or all, or the issues relating to separation, divorce, children, finance or property by negotiation.’ Family mediation is not only about the ‘breakup’ of families, but also the transition to a better life for members within that family. This concept of family mediation spread widely and was compiled in Family Law Act as well as Access to Justice Act 1999. Over the years, the government has also been focusing on increasing the use and relevancy of family mediation through enacting statutes. New enactments such as Family Law Act, Access to Justice Act, Children and Adoption Act, Legal Aid, Sentencing and Punishment of Offenders Act, and Children and Families Act.

Since 2014, it is compulsory for family applicants to attend a Mediation Information Assessment Meeting before making their court application. Exemptions can be made in cases involving domestic violence, child protection concerns, a matter of urgency, or an attempt of mediation has been made within the last four months.

Restorative justice is not a historically common practice in the UK. However, its ideas such as conflict resolution, mediation, and reparation are now often utilized. It is defined by the Ministry of Justice as “a process that brings those harmed by crime, or conflict, and those responsible for them for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward.’

In other words, restorative justice focuses on rehabilitating the offender through reconciliation with the entire society, as well as the victim, instead of a jail term. The main motivation is to address the damage done by the offender to the victim, and it can only take place if the offender fully and freely admits to their crime and is willing to take responsibility for their actions. Its main focus, unlike civil or family mediation, is not on the conflict involving two or more parties, but rather to bring the victim, offender, and society at large through a form of mediation instead of proceeding to trial. It also aims to reduce the percentage of reoffending.

Unlike other mediations, the restorative justice process can be applied in any criminal legal system and takes places while the offender is still under custody. The process is voluntary and can be provided for every willing victim and offender.

All the mediation processes in civil, family and restorative justice share a number of similarities. The three main principles include confidential, impartial, and power of decision making. The programme has displaced positive changes, with an approximate 18% decrease in reoffending, particularly after the enactment of the Crime and Disorder Act and Youth Justice and Criminal Evidence Act. In return, the government three times of what they have spent on funding the restorative justice programmes.

Many common characteristics exist between these three types of mediation process. For instance, all mediation process is considered confidential. Prior to the mediation taking place, all relevant parties will sign an Agreement to Mediate, which sets out the scope of confidentiality. It indicates that the communication made are for the sole purpose to attempt and settle, and will not be referred to in court proceedings, affidavits, or other statements. The only exception case being where if a statement made indicates a safety risk or discloses a criminal offence. Additionally, mediators are also barred from requiring mediators to be called as a witness or disclose information, unless there is an overriding obligation in law, or if both parties consent.

Unlike the traditional judicial process where the judgment is available to the public, the decisions made in mediation remains between the parties involved. This provides more private and confidential, particularly for family matters that are sensitive in nature, and parties may not wish to have their settlement publicized. Another key similarity between civil mediation, family mediation, and restorative justice is that the mediator has to be impartial third party, without any bias towards the parties or interests to the outcome. Mediator’s job is to facilitate parties in reaching an agreement on their own, and they should not side with any parties involved in the process.

The last key similarity is that all decision-making power resides with the parties involved, rather than with the court or mediator. It is the participants that have the power and freedom to decide how the underlying issues of their conflict should be remedied, whereas during a trial, the end results are much less predictable. Even in restorative justice, its result depends on what the offender and victim ultimately agree upon, and not any other third parties in the process.

Mandatory Mediation

Mandatory mediation is where parties are required to take part in mediation by law before granting leave for their cases be heard in court. Given the current situation in England and Wales, should mandatory mediation be adopted? Whitehouse points out that the concept of mediation in England and Wales is moving away from an option for private choice, to becoming more of a compulsory part of the public justice system.

Supporters of mediation argue that the continued reform for ADR is necessary, as the court fails to meet the demand of society for efficient and affordable justice. Both civil and criminal courts in the UK are overloaded. The costs for court trials are also high and disproportionate, which in turn, increased demand for mediation and other forms of ADR.

Statistics demonstrate it would be appropriate to use mediation, particularly for civil cases, where 90% of the civil cases and disputes usually end up settling out of court. Academics such as Genn also advocates for the use of civil mediation in place of adjudication to bringing down the number of full-length trials. The success of mediation has also been shown, indicated that roughly 10,000 disputes are being resolved using the mediation process every year, with 67 per cent of the conflicts resolved within a day, and a cumulative success rate of the process at about 86 percent.

Regardless of its proven results, there still are many heated debates regarding whether England and Wales should adopt obligatory mediation. Judicial decisions have also been divided on this topic. In Halsey v Milton Keynes General NHS Trust, it was deduced by the courts that no party should be compelled to mediate. Lord Justice Dyson stated that it is ‘[t]he court’s role to encourage not to compel’. However, in Burchell v Bullard, the litigants were strongly encouraged to negotiate, and one of the parties was penalized for overlooking the offer at the pre-action stage.

There is no doubt on the positive aspect of ADR, particularly mediation. As explained by Jackson L.J. “[t]he most important form of ADR … is mediation. The reason for the emphasis upon mediation is twofold. First, properly conducted mediation enables many (but certainly not all) civil disputes to be resolved at less cost and greater satisfaction to the parties than litigation. Secondly, many disputing parties are not aware of the full benefits to be gained from mediation and may, therefore, dismiss this option too readily'.

Lord Jackson is correct that the financial implication on the judicial system and the need to introduce reforms to the issue of costs of proceedings. As discussed earlier in this essay, making mediation mandatory will undoubtedly reduce the cost for the courts as well as the litigating parties. Additionally, the process will the save court’s time, and allow resources to be allocated to cases requiring more judicial attention.

The formality of mediation is also less stressful than the traditional judicial process. Parties will not have to attend court in order to achieve a fair result. It can also be extremely intimidating for an average citizen to be on trial. Lessened stress and formality can also encourage future relationships. Unlike a trial where one party is placed against the other, mediation encourages parties to focus on resolving the issue, rather than fighting against each other.

As stated by Paul Randolph, “.. we have an innate aggression, which, when we are in dispute, transforms itself from a mere instinct to ‘survive’ into an acute need to crush the opposition.’ Mediation is particularly important in this case, where a dispute is between family members or people with a close relationship. It will promote healthy discussion among the parties and seek to help parties to understand each other in a mutual environment. The goal will no longer be attempting to crush the opposing party, but rather to work with each other in reaching a mutual agreeable solution.

Additionally, mediation is much more flexible than the traditional litigation process. Genn is correct to believe that mediation can offer creative solutions which would not be available in court. It focuses on the commercial realities of disputes rather than legal technicalities, it can repair relationships and reduce conflict, and it is also less stressful for parties involved than court proceedings. As mediation does not focus on only the legal basis of claims, parties are not restricted to legal remedies as their solution.

Furthermore, the informality nature of mediation is beneficial to layman public, who are not experienced with legal rules and procedures of the traditional litigation process. The flexibility of mediation also means it can not only be tailored to suit the different needs of the parties, but also be used either before or during the course of the litigation proceedings.

Mediation’s flexibility also connects to its next advantage – where the parties have the power to decide on the outcome. It is up to the participants, and not a third party such as a judge like the traditional trial process. The parties are more likely to accept responsibility for their agreement, as they had more control over the outcome. Moreover, an agreement reached through mediation only becomes binding after being signed by all parties. This means that parties can withdraw their consent anytime.

The benefit of mediation in terms of time and cost efficiency, more user-friendly and promotion of constructive future relationships means it is worth being promoted as a serious method to resolve disputes. Having the benefit of privacy and confidentiality, as discussed earlier in this essay, can also help preserve the values which social justice and legal prosperity depend on. Adopting mandatory mediation will promote public awareness and direct the public’s attention to the full range of benefits offered by mediation. Indeed, as Lord Jackson stated, the benefits of mediation should not be dismissed lightly, and courts should apply mediation in suitable cases.

On the other hand, despite the various benefits of mediation, it should not be made mandatory. Lord Woolf and Lord Jackson have both expressed a similar opinion, proposed that parties should not be forced to mediate, but courts should encourage mediation in appropriate cases.

Case laws also divide on this topic. In Halsey, the compulsion of ADR was termed ‘unacceptable constraint’ on the right to access the court, thus a violation of the right to a fair trial. It is accepted that the court may at times, direct parties to participate in some form of ADR such as mediation or arbitration. When the parties refuse to mediate without reasonable cause, then the parties run the risk of penalties known as an adverse cost order under the Arbitration Act 1996.

Parties should take part in mediation voluntarily and with good faith. Forcing parties to participate, or removing the voluntary aspect of mediation, can result in ‘bad faith participation. As seen in cases such as Carleton and others v Strutt and Parker, where the court noted the failure to mediate was the result of bad faith participation on both parties. If not for the parties’ position being unrealistic and unreasonable, the mediation may have resulted in a more desirable result. This is particularly the case for family mediation, as stressed by Maclean, as mediation is dependent on the willingness of all parties involved in order to have a safe, effective negotiation process.

As mediation is not an appropriate method for every dispute or individual, forced mediation can involve parties lacking the motivation to attempt and resolve their disputes. Without voluntary participation, parties are more likely to end up feeling less sense of ownership in the process and resolution that results from the mediating process.

Another reason why mandatory mediation should not be adopted is the potential unnecessary costs when it fails. When parties cannot to resolve their disagreement through mediation, they will have to pay the further costs to proceed to court. Parties that are forced to mediate may also cause chaos and damage to one another through the prolonged process in addition to the traditional court process.

Despite the continued interest from various stakeholders to implement compulsory mediation, the regulation of this industry remains minimal. This lack of regulation to the mediation industry means that England and Wales lack the safeguards to protect the public. Oliveira and Beckwith pointed out that obligatory mediation cannot work effectively or result in the intended outcomes if it is introduced without a proper regulatory framework, as it is the case within England and Wales.

Conclusion

Many countries have already accepted the use of mediation, such as New Zealand, United States, Australia, and Canada. Based on the success of various jurisdictions, and proven positive results, it is argued that English lawmakers should reconsider integrating mediation as a serious method of dispute resolution. However, there is currently a vacuum created by the a lack of government-controlled mediation framework in the UK.

The primary reason being that compulsory mediation will undermine the nature of mediation, which stems from voluntary participation. Compulsion into the process thus seems inconsistent and antithetical to the consensual process. Parties should have the right to opt for dispute their case in court if they feel that judicial intervention is needed in order to resolve it rather than mediation. It is therefore preferable to create an environment where the public is educated on mediation and its benefits, rather than imposing it without giving parties a choice.

By promoting awareness of mediation, people are more likely to voluntarily participate, once they learn how to settle issues without any legal compulsion. It will more likely create a satisfactory result if parties enter mediation with a positive mindset.

As Lord Woolf and Jackson pointed out, reform is necessary, but compulsory mediation is not the answer. Instead, the mediation process should be encouraged within every stage of litigation.

To conclude, mediation could be made mandatory in the future, as its benefit would outweigh the potential harm. However, the current legal framework and regulations for mediation are yet ready to support this change. Therefore, it is with regret to say that despite the range of possible benefits, the policy in England and Wales should stop shy of mandatory mediation.