Would Compulsory Mediation Be Just Another Weapon In A Lawyer’s Arsenal?

25th January 2018 by

David Bailey, Partner in the Dispute Resolution team, discusses the question in the Times Newspaper.

Mediation is generally a cost-effective alternative way to secure dispute resolution. These days, typically in commercial cases, parties arrive legally tooled up with a full set of solicitors, barristers and experts, much as they would for a trial, and act accordingly.

And whereas the mediator might once have been from another profession, perhaps an architect or quantity surveyor, the role is now almost always filled by a judge or barrister.

A Civil Justice Council working group report in October makes a case for making alternative dispute resolution, of which mediation is one form, compulsory in all civil and commercial cases. It is compulsory in only employment and family matters at present.

Clearly a key question that should be addressed is whether mediation is best served by resembling the cut and thrust of courtroom conflict. This is, after all, something intended to spare people the stress and cost of such a battle, not replicate it.

The present resemblance to a rather more traditional legal experience, with the associated panoply of paperwork and cost, is striking.

For example, parties to mediation often require the preparation of information akin to trial bundles, an expensive task; and with the same pleadings, documents and inter-solicitor correspondence.

The documents will include position papers too, presumably to persuade the mediator of the merits of respective claims. This raises questions: does the mediator in requesting such statements intend to evaluate those arguments looking for weaknesses? And is this to persuade the parties that their cases are worse than they think, or have been advised, that they are, or perhaps that they will cost more? Is this ultimately to scare them into settling?

If it is even some of the above, how is mediation materially different to the normal litigation process, where both parties seek to persuade the other of the benefit of settling? Is it purely the credibility of the mediator and their ability to appear more objective than the parties’ lawyers? Is it this misunderstanding of the mediator’s purpose that achieves the settlement?

Finally, anything less than settlement is seen as failure, which is why so many mediations last into the night. The mediator wants to make it happen. By then so much has been invested in the process that the parties themselves feel they must settle. How does this give the parties what they want? Has it given procedural justice; the information they want to make an informed decision; empowerment or mutual recognition? It often appears to be settlement at all costs, in every sense.

This is not to say these things are never achieved, but it could be said that they are so in spite of rather than because of the mediation at work.

We need to ask ourselves honestly as we are invited to consider its extension whether mediation is more likely to lead to settlement than any other process. Or will making it compulsory in other areas provide just another opportunity for lawyers to use it as a tactical battleground?

For more information on this topic or the service we offer please contact David Bailey on 01273 810 064 or email david.bailey@healys.com