“An ounce of mediation is worth a pound of arbitration and a ton of litigation”[1].
The words by Joseph Grynbaum stand today as we question whether or not mandatory mediation is the future of the legal system. As conflicts increase, the method by which they can be managed and resolved has also developed.
Mediation is a structured, interactive process where impartial third-party assists disputing parties in resolving conflict through the use of specialised communication and negotiation techniques[2].
Since mediation is essentially voluntary, ‘mandatory mediation’ might appear to be something of a contradiction. Any form of coercion requiring parties to mediate seems to be at odds with the perception of parties freely choosing to come together, and considering their consciousness to settle. This essay will focus on and analyse ‘if mandatory mediation is the future.
Before we examine the above statement, it is necessary to consider the history of mediation and how it has formed.
Mediation has been recognised as a form of dispute resolution since ancient civilisation. The beginning of mediation can be traced back to ancient Greece which knew the non-marital mediator as a pyroxenites. Then in Roman civilisation, Roman law, starting from Justinian's Digest of 530–533 CE started to recognise mediation[3]. The Romans called mediators by a variety of names, including: “internuncios, medium, intercessor, philanthropist, interpolator, conciliator, interlocutor, interpret, and finally mediator”[4]
Moreover, this form of conflict resolution has been widely practiced and recognised throughout time by Buddhists, Quakers, the Christian church, Judaism, and followers of Islam. In the Middle Ages, the clergy would mediate between criminals, who had been given sanctuary, and the authorities. More recently, the USA (1947) and the UK (1896) respectively established a Federal Mediation and Conciliation Service and passed the UK Conciliation Act to address conflicts in industry.
The Civil Procedure Rules (CPR) at 1.4[5] encourage parties to a dispute to use mediation as an alternative means to settle rather than bring about litigation proceedings[6].
The Civil Justice mandating mediation is already in force in England & Wales in the context of family law and employment law. In family proceedings, the Children and Families Act 2014[7] made it compulsory for mediation through the Mediation Information and Assessment Meeting (MIAM) before onward litigation to the Court can proceed. In employment law, CPR 3.1 (2) (m)[8] allows as part of the court’s case management powers to require parties to engage in another form of ADR, Early Neutral Evaluation (ENE). The difference between the two is that mediation is a facilitative approach whilst ENE is a merits-based assessment form of ADR.
Whilst mediation is not mandatory in England & Wales it is encouraged. Parties will continue to be incentivised to pursue mediation. A more radical step is needed, such as mandatory mediation for low-value disputes – a reform that other common law jurisdictions have embraced with good results such as Italy and Australia in comparison. let’s examine this further.
Mandatory mediation has been around in Italy since 2011. It was a new concept that was opposed by lawyers and neglected by the judiciary. The criticisms of this mandatory nature were that it does not belong to the Italian legal tradition or its history. In the first 9 months of the introduction of the mandatory nature, it was an encouraging start, it was declared mandatory by the Constitutional Courts and thus in 2013, it was re-introduced as a mandatory first step[9].
In comparison, there is no compulsion for formal mediation in England, only the family branch under MIAM and ENE in employment law whilst it is in Italy you cannot continue legal proceedings until mediation is undertaken. In the UK the cost of mediation varies and there is no regulation by the Government. However, in Italy, the costs element is set out in a decree[10]. Both the UK and Italian mediators adopt a facilitative approach.
At the Federal level, the Civil Dispute Resolution Act 2011 (Cth) requires parties to take “genuine steps” to resolve their dispute before commencing proceedings (although it does not specify what those “steps” must involve but rather sets out a non-exhaustive list of as to what may constitute genuine steps). [11]
Courts in all Australian jurisdictions have the power to refer parties to mediation without their consent[12], and in some states, parties to certain kinds of disputes are required to attempt ADR before they are permitted to commence proceedings. The courts have the power to impose costs and sanctions on parties who refuse to mediate and may even sanction those who attend mediation but fail to participate in good faith.[13] Again the mandatory nature of mediation is similar to Italy yet the only similarity between the UK is the cost implications involved.
Lord Wolf has encouraged the use of mediation as a means for parties to solve their dispute instead of taking the matter through litigation, with the implications of cost sanctions for non-compliance. He stated that: The court will encourage the utilisation of ADR at case management conferences and pre-trial reviews and can take into consideration whether the parties have unreasonably refused to try ADR.[14]
In his Review of Civil Litigation Costs Final Report dated 1 December 2009, Lord Justice Jackson noted that whilst ADR was not appropriate in every case, it was a “highly efficacious means of achieving a satisfactory resolution of many disputes”[15] and was under-used. Ultimately, LJ Jackson came out against making ADR/mediation compulsory, recommending instead that judges should merely encourage mediation and impose costs and sanctions for unreasonable failures to engage.
LJ Jackson’s emphasis on mediation was twofold. First, properly conducted mediation enables civil disputes to be resolved at less cost and greater satisfaction to the parties than litigation. Secondly, many of the disputing parties are not aware of the full benefits of mediation and therefore dismiss it so early on. The statistics[16] from CEDR, however, show success rates since the report.
Around the world, mediation is encouraged in our civil justice system. Parties desire a resolution but the Courts have now taken a view to facilitate and assist parties to find a settlement. There is pro-active case management towards resolution and settling out of court more so than ever before. Let us examine the ‘for’ and ‘against’ arguments of mandatory mediation and what this means for the, dare I say it, ‘customer’ of the court.
There are several advantages of mandatory mediation, the obvious one being that it allows parties to find a mutually acceptable solution (voluntary) to a dispute rather than going to court which can be lengthy, costly, and uncertain.
In mediation, the parties can control a tailored solution than the one that a Court may order. By undertaking this method there is communication between the parties and which sometimes can help sever relationships that would otherwise be damaged in pursuit of litigation.
If a settlement is achieved in mediation, there can be a significant saving of time and costs whilst also narrowing the issues in the dispute and preventing them from sticking to their entrenched positions identifying their needs, and challenging them to have realistic positions.
The fundamental component of mediation is its voluntary nature and that the party has the autonomy to choose to meditate. The autonomy is diluted if mediation is imposed on a party. The sincerity and level of engagement are jeopardised if it is mandated.
Many types of disputes are not well suited to mediation where it is non-financial and where a legal declaration is required which can only be received by way of a judgment.
In cases where the costs sought by either party are not large, the cost of the mediation process is an obstacle and factor to be considered. Who will pay for the mediator if it is mandatory? Will the parties get to choose the mediator, timing, venue, etc? These are all questions that possess an overall risk to the process if mediation is mandatory.
In 2008, the EU adopted the European Mediation Directive (2008/52/EC)[17] to promote settlement between disputing parties using mediation. The Directive applies to cross-border disputes which shows that the Member States must provide for agreements reached through mediation as enforceable through their own choice.
Article 5 (1) of the Directive[18] states that:
A court before which an action is brought may, when appropriate and having regard to all the circumstances of the case, invite the parties to use mediation to settle the dispute. The court may also invite the parties to attend an information session on the use of mediation if such sessions are held and are easily available.
The wording of the Directive permits national courts to ‘invite’ parties to not only mediation but also to an ‘information session’. The wording of the Directive is mandatory on the pretext of inviting parties to not only mediate but also attend an information session.
Article 5(2) of the EU Mediation Directive[19] in effect possibly permits our national legislation to make mediation compulsory, providing it does not deny the parties a right of access to the courts, it states that:
This Directive is without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system.
The voluntary nature of mediation and the scope are within the Directive; however, it creates an obligation by the Member State to mediate because it gives the courts power to allow the Member States to introduce into their domestic legislation coercive measures such as the introduction of incentives and sanctions to the mandatory nature of mediation. Moreover, Article 5 (2) of the EU and the Directive have accepted a form of mandatory mediation and its access to justice as long as there are no barriers for the parties to access the court system. Article 9[20] in particular refers to the information that is provided to the general public, it states that:
‘Member States shall encourage the availability to the general public, in particular on the Internet, of information on how to contact mediators and organisations providing mediation services.
The EU Mediation Directive is set out to allow the Member States to dictate and provide a gear towards mandatory mediation by allowing sanctions and imposing on parties to undertake this method before they can access the courts.
Can the Courts ensure that there is an obligation to mediate? We have already seen that the answer to this question in the context of the EU Mediation Directive is positive. Now let us analyse case law authority to see whether or not the practice of mediation makes it mandatory before or by the judiciary and how that relates to whether there is a breach of Article 6 ECHR or not.
In Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576[21], the judgment supports judicial encouragement for parties to enter into ADR, but the Court was short to conclude that to make mediation mandatory for unwilling parties would be an “unacceptable obstruction to the right of access to the court" under Article 6 ECHR. In contrast, however, in Lomax v Lomax [2019] EWCA Civ 1467[22] it was stated that the Court had the power to order parties to participate in Judicial Early Neutral Evaluation, a form of ADR[23]. In the conclusion of the Article 6 ECHR debate as to whether compulsory mediation is a breach of the Convention, the Court in Halsey relied heavily upon the European Court of Human Rights decision in Deweer v Belgium (1980) 2 EHRR 439[24].
In Rosalba Alassini [2010][25], the Italian court made a preliminary reference to the Court of Justice, which asked whether the Italian law complied with Article 6 ECHR and Universal Services Directive. The Court first considered whether the Italian legislation contravened the principle of effective judicial protection of rights under EU law. It was held that mandatory mediation would not be a breach of EU law under Article 6 ECHR.
It has been concluded now, 17 years later that the decision in Halsey was conceivably not good law as indirectly stated by Lord Dyson. Further to the decision of Halsey, litigants today are being compelled or at least encouraged to take part in mediation such as the Mediation Information and Assessment Meetings (MIAM)[26].
The view of the Civil Justice Council (CJC) in its 2021 report[27] was that mandatory ADR/mediation does not breach Article 6 EHCR concerning the legality of the ECHR and the desirability between parties. Given the decision in Halsey, and the subsequent ECtHR case of Deweer it has been established that compelling parties to use mediation does not necessarily violate their rights under Article 6 ECHR. But there seems to be a clash of the court having the power to order to mediate which the parties will no doubt say was compulsory, against the courts having the power conferred upon them through CPR to impose sanctions for unreasonable conduct or disengagement. The distinction that needs to be made is an order for compulsory mediation is unlawful according to Halsey and orders which require parties to attempt mediation otherwise sanctions will be imposed however permissible[28] and therefore not a breach of Article 6 ECHR. “An unacceptable constraint”[29] identified in Lomax can arise if the mediation was expensive, took an excessively long time, or is burdensome on the parties.
It would be misleading not to state in concluding this paper that elements of mandatory mediation are already part of the English legal system[30]. However, this paper has concluded that mandatory mediation is not the future of the English legal system. The Jackson Report concludes that disputing parties should not be compelled to mediate, whilst the English legal system already has compulsion in place through MIAMs and the 2004/2005 pilot scheme for ARM failed as statistics showed the failure rate of compulsion. The Italian legal system has met with compulsion since it introduced mandatory mediation, the imposing of a decision by the mediator is one step too far for parties mediating and having autonomous decisions themselves in the form of a voluntary nature.
There are no scientific studies on this moot point, comparison between different schemes, areas of law, or different countries is problematic. The case for mandatory mediation has not proven itself, although one cannot regard the success in Australia, this is not universal across the globe. The late Harvard Professor Frank EA Sander: “There is a difference between coercion into mediation and coercion in mediation”.
[1] ‘Handbook on Mediation’ by Nandini Gore. Quote by Joseph Grynbaum
[2] https://en.wikipedia.org/wiki/Mediation accessed on 31.07.2022
[3] https://viamediationcentre.org/readnews/OTI0/WORKPLACE-MEDIATION accessed on 15.08.2022
[4] MEDIATION (ecourts.gov.in) accessed on 10.08.2022
[5] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01 accessed on 13.08.2022
[6] The Pre-Action Conduct and Protocols set out the stages the court would normally expect parties to take before commencing proceedings for particular types of civil claims.
[7] https://www.legislation.gov.uk/ukpga/2014/6/notes/division/4/2/1#:~:text=Subsection%20(1)%20provides%20that%20any,non%2Dcourt%20based%20dispute%20resolution accessed on 13.08.2022 - Subsection (1) provides that any person who wishes to make a relevant family application must first attend a family mediation information and assessment meeting (a “MIAM”) to find out about and consider mediation, or other forms of non-court based dispute resolution
[8] https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.2 accessed on 13.08.2022
[9] https://www.mediate.com/compulsory-civil-mediation-in-italy-2011-2021/ accessed on 14.08.2022
[10] By legislative act, the Italian Government adopted Ministerial Decree No 180 of 18 October 2010, as amended by Ministerial Decree No 145 of 6 July 2011 (‘Ministerial Decree No 180/2010’) - https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62011CJ0492&from=ET#:~:text=Article%2011%20of%20Legislative%20Decree,up%20a%20proposal%20for%20conciliation. Accessed on 14.08.2022
[11] https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report.pdf accessed on 15.08.2022 accessed on 15.08.2022
[12] Remuneration Planning Corp v Fitton [2001] NSWSC 1208, at [3] Hamilton J
[13] Commercial mediation in Australia | Commercial mediation – a global review | Linklaters accessed on 14.08.2022
[14] https://books.google.co.uk/books?id=k5DqAwAAQBAJ&pg=PA141&lpg=PA141&dq=Lord+Woolf+The+court+will+encourage+the+utilisation+of+ADR+at+case+management+conferences+and+pre-trial+reviews+and+can+take+into+consideration+whether+the+parties+have+unreasonably+refused+to+try+ADR&source=bl&ots=CXdOujltwc&sig=ACfU3U1-0xidM5kqGrZOkF8DH65T4PpydA&hl=en&sa=X&ved=2ahUKEwjIiYWp0sj5AhXXQUEAHTdvCW4Q6AF6BAguEAM#v=onepage&q=Lord%20Woolf%20The%20court%20will%20encourage%20the%20utilisation%20of%20ADR%20at%20case%20management%20conferences%20and%20pre-trial%20reviews%20and%20can%20take%20into%20consideration%20whether%20the%20parties%20have%20unreasonably%20refused%20to%20try%20ADR&f=false accessed on 15.08.2022
[15] https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf at page 387 [3.1(i)] accessed on 23.07.2022
[16] The Centre for Effective Dispute Resolution (CEDR) reported in 2016 that 41% of mediators and 43% of lawyers have seen an increase in mediation following the Jackson reforms - The Seventh mediation Audit', CEDR 11 May 2016 https://www.cedr.com/wp-content/uploads/2020/01/The_Seventh_Mediation_Audit_2016-1.pdf accessed on 15.08.2022
[17] https://www.legislation.gov.uk/eudr/2008/52/article/5/adopted accessed on 08.08.2022
[18] https://www.legislation.gov.uk/eudr/2008/52/article/5/adopted accessed on 08.08.2022
[19] https://www.legislation.gov.uk/eudr/2008/52/article/5/adopted accessed on 08.08.2022
[20] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008L0052#d1e522-3-1 accessed on 08.08.2022
[22] Lomax v Lomax [2019] EWCA Civ 1467 https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2019/1467.html&query=(Lomax)+AND+(v)+AND+(Lomax)
[23] Ibid, at [31]
[24] DEWEER v. BELGIUM (coe.int) accessed on 10.08.2022
[25] Rosalba Alassini v Telecom Italia SpS C-317/08 [2010] 3 CMLR 17 ECJ - https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62008CJ0317 accessed on 14.08.2022
[26] Children and Families Act 2014, s.10 (1) - https://www.legislation.gov.uk/ukpga/2014/6/section/10/enacted accessed on 14.08.2022
[27] https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report-1.pdf
[28] See Mann v Mann [2014] EWHC 537 (Fam) and Bradley v Heslin [2014] EWHC 3267 (Ch)
[29] Lomax v Lomax [2019] EWCA Civ 1467
[30] Quasi-compulsory. Although not mandated, the effect is achieved through the potential for cost orders if ADR is not undertaken before bringing a case to court. This is effectively what we have in England and Wales.