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Proportionality and mediation: are we any closer to compelling parties to mediate?

This time two years ago, having listened to Lord Neuberger’s speech on the future of mediation at the Civil Mediation Council’s (CMC) annual conference, I wrote about whether we may see some form of compulsory mediation scheme sooner, rather than later. Two years on and I wonder, are we really any closer to that than we were in May 2015?

Impatient for change

I have just attended this year’s CMC conference and the mood amongst a lot of the delegates was one of impatience. Given the introduction of the new proportionality test and the court’s willingness in a number of recent cases to significantly reduce the costs awarded to successful litigants on the grounds of proportionality (see for example, BNM v MGN and May v Wavell), there was a consensus that in the vast majority of cases, parties should be mediating and doing so early. There may be little to be gained from litigating a claim where, even if you are successful, you will be left with a large rump of unrecoverable costs to bear. This is particularly true for lower value claims.

Why then, if mediation is the “proportionate option”, have we not seen a noticeable increase in the number of claims going to mediation since the Jackson reforms were implemented?

What are the barriers?

A major part of the problem remains the lack of public awareness of mediation as a genuine alternative to litigation. As one of the mediators at the conference said to me, friends continue to ask, “have you been in court today?” This places the onus on lawyers to educate themselves and their clients about the benefits of mediation, as well as explaining to those clients the potential costs consequences of ignoring mediation as an option. However, despite the creep of case law demonstrating reprobation from the courts for unreasonably failing to engage in mediation (see for example, Thakkar v Patel, in which Jackson LJ warned that when mediation was obviously appropriate and a party frustrated the process “by delaying and dragging its feet for no good reason”, a costs sanction was merited), we haven’t witnessed a fundamental cultural change in attitudes.

Some at the conference speculated that perhaps it is unrealistic to expect lawyers to spearhead a shift away from litigation in favour of mediation, given the potential negative impact on legal fees. However, clients who settle their cases earlier may be more satisfied and less likely to challenge legal fees than those who go to court and win, but are saddled with unrecoverable fees. Lawyers often get bad press due to a perception that they charge too much. If early resolution of a dispute via mediation can help to change this image, maybe more clients will be encouraged to seek advice and lawyers may see a shift in fee pattern to lower fees per case, but a greater number of instructions.

Is the answer to introduce some form of compulsion?

If it is unfair or unrealistic to put the onus on lawyers, is the answer to make mediation compulsory?

A lot of the delegates at the conference seemed to be in favour of some form of compulsion; if not an absolute requirement to mediate before litigating, at least a requirement to engage parties directly in a discussion about mediation. For example, civil and family mediator, Mary Banham-Hall, has started a petition to require judges to refer disputing parties to an accredited mediator so that they can hear about how mediation could help them, once joint costs reach about 20% of case value.

Other suggestions were to require all parties (not just legal representatives) to attend the case management conference (CMC) and for judges to explain directly to parties what mediation is and the potential benefits, or to make mediation compulsory in all cases, unless parties can persuade the judge it is not appropriate.

How likely is change in the near future?

In his report into the reform of the structure of the civil courts, Briggs LJ, proposed the introduction of a conciliation stage as part of his proposal for a new online court for lower value claims. He said that this was mainly directed to making conciliation a “culturally normal” part of the civil court process, rather than being extraneous and optional, as it is currently (paragraph 6.13, interim report). However, he was clear that this did not mean that alternative dispute resolution (ADR) should be compulsory. Instead, he said that parties should be invited to engage in an appropriate form of conciliation, but a refusal to do so should be respected.

In some ways, I think this could be seen as one step forward and two steps back, if a blanket refusal to engage in ADR, however unreasonable, does not attract any sanction.

In his speech in May 2015, Lord Neuberger was reluctant to recommend unequivocally compulsory mediation, but thought there was a lot to be said for extending the MIAM (mediation information and assessment meeting) scheme introduced for family cases to smaller civil cases.

Speaking at Practical Law Dispute Resolution’s Birmingham roadshow last month, District Judge Lumb, who is a member of the Civil Justice Council’s working group on ADR, said that the group is likely to conclude that mediation should not be compulsory, but that there should be an equivalent of a MIAM in lower value civil cases.

A cultural change

Family mediators at this year’s conference seemed to agree that the introduction of MIAMs had revolutionised the status of mediation in family proceedings and thought that it could do the same for civil cases. However, they warned that both parties to a dispute should be required to attend any civil MIAM because in family proceedings, although respondents are expected to attend, they cannot be compelled to do so. This was seen as a flaw in the current system.

If the CJC working group does recommend the introduction of MIAMs and if the proposal is taken up, this could be a big step forward in advancing the cultural change which Briggs LJ referred to in his report. Alongside Briggs LJ’s own proposals for putting some form of conciliation at the heart of a new online court for lower value claims, perhaps mediation is finally about to step into the limelight. However, with a general election round the corner and the current proposals for court reform on hold, those impatient for change may have to wait a bit longer.

Practical Law Dispute Resolution Lucy Swallow

One thought on “Proportionality and mediation: are we any closer to compelling parties to mediate?

  1. I recently attended the final event in the Global Pound Conference (GPC) series in London last week, Shaping the future of dispute resolution and improving access to justice. I have written a blog about the conference, published on the Dispute Resolution blog on 18 July 2017, but I just wanted to mention one point which emerged about compulsory mediation that surprised me: clients do not seem to want it.

    Delegates at the conference were asked to vote on a series of questions which considered the problems with current dispute resolution processes and how these could be improved. The answers revealed that users of dispute resolution were not generally in favour of compulsory mediation. This was in stark contrast to the adjudicative providers group (judges, arbitrators) and influencers group (researchers, educators, government bodies) who did favour it.

    Comments from the panel and from the floor suggested that whilst many users strongly favoured mediation and used it extensively, they did not want to be compelled to do so in circumstances where it was not appropriate. There was concern that it could become a box ticking exercise.

    My feeling is that this may be because those users present at the conference were for the most part sophisticated corporates involved with litigation on a global scale. They were already well aware of the benefits of mediation and commonly used it.

    One of the benefits of making mediation compulsory, or at least something which you have to positively opt out of, is to raise awareness of mediation as a realistic and cost effective option for resolving disputes. This “education” aimed at changing litigation habits, is perhaps unnecessary for more sophisticated corporate users. It is often in lower value disputes, involving inexperienced litigants who have never heard of mediation, where mediation as an option needs a higher profile.

    Perhaps therefore, it is worth considering whether an opt-out system for mediation should be introduced for disputes up to a certain value. As for where the threshold should be, that is another debate.

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