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Compulsory mediation: sooner rather than later?

In the third part of our recent interview with Sir Vivian Ramsey, Sir Vivian said he thought it would take some time for compulsory mediation to be introduced in this country. However, it seems that the President of the Supreme Court, Lord Neuberger, may think differently, at least in relation to smaller civil disputes. At the recent Civil Mediation Council annual conference which I attended, he expressed some interesting views on the future of mediation in his keynote address.

Advantages and disadvantages of mediation

What stood out for me about Lord Neuberger’s address was the fact that he didn’t shy away from highlighting the disadvantages of mediation alongside the advantages. He was clear that if mediation is to have a positive future in our justice system, it is important to face up to its disadvantages in order to cater for them or neutralise them. This is particularly so, given how great the advantages of mediation are. Lord Neuberger was unequivocal that, if we can do this, we should be uninhibited about supporting mediation in civil and family cases.

Compulsory meditation

While it may sometimes be tricky for judges to decide whether to recommend mediation, Lord Neuberger felt that the balance of risk favoured doing so. He referred to compelling parties to mediate as “a more extreme solution”. He felt that the primary objection to this is the fear that it may make it more difficult for parties to access the courts, for example, if mediation has used up their funds or delayed a hearing. However, he thought that this argument had limited force and that, if mediation was low cost and speedy, this would not be an issue.

Therefore, while he admitted he was a cautious of speaking unequivocally in favour of compulsory mediation, Lord Neuberger said that he definitely favoured it for some types of case. He felt that there was a lot to be said for extending the MIAM (mediation assessment meeting) scheme introduced for family cases to smaller civil cases. He also spoke positively about encouraging parties to include compulsory mediation clauses in their contracts and thought that these could be included in, for example, every council or housing association tenancy agreement or in standard form private sector tenancy agreements.

Med-arb and med-exp

I thought it was particularly interesting that Lord Neuberger put forward an option for combatting the disadvantages resulting from mediation not leading to an agreed settlement. He spoke positively of using what is usually called “med-arb”, but what he felt is perhaps better termed “med-exp”. Using this procedure, if mediation has not resulted in a settlement by a certain time, the mediator can impose a settlement. He thought it was better for the mediator in this procedure to act as an expert determiner, rather than an arbitrator, to avoid the relative formality of arbitration procedure. He felt the knowledge that the mediator will take on this role at a certain time, would help to concentrate the parties’ minds on settlement.

The future

Given that a lot of the mediators who attended the conference reported that parties were increasingly wanting them to take a more evaluative, rather than the traditional facilitative approach to mediation, perhaps “med-exp” may well become more common. Further, with an ever increasing focus on finding proportionate ways to resolve lower value civil claims, I wonder whether we may see some form of compulsory mediation scheme being introduced sooner rather than later.

Practical Law Dispute Resolution Lucy Swallow

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