Could Mediation Become Compulsory?

5th August 2021 Commercial Litigation

The Civil Justice Council recently published a report on compulsion in ADR. It reviewed all the cases and came to the conclusion that the statement originally made in the leading case of Halsey that compulsory ADR was likely to be a breach of the right to a fair trial under the European Convention on Human Rights was incorrect. I was pleased to see this as I had always had doubts about this statement. Firstly, the case it relied on which was from Belgium had been severely misunderstood in the judgement and also it seemed to me a mistake to say that a compulsion to attempt ADR, especially mediation, was any form of prevention of access to the courts. A requirement to complete some form of prior step before accessing the courts is hardly a ban on their use and is in fact pretty common across litigation both here and elsewhere.

In any event the CJC was clear that a compulsion to use ADR was reasonable whether that was applied on a broad statutory basis or by individual judges in specific cases so long as this was not an absolute barrier to accessing the courts. The other point made by the CJC was the inappropriateness of the use of the “A” in ADR. There is nothing “Alternative” about mediation, arbitration or any other dispute resolution mechanism. These are mainstream and well established mechanisms of resolving disputes and they should be fully adopted as such.

Undoubtedly linked to this report, the Ministry of Justice has just opened a call for evidence to run over the summer which is considering evidence about dispute resolution pre-court and also how to better integrate technology into the process.

It seems to me that mediation has very much come of age and with the range of options it now offers using technology and face-to-face options it should be fully integrated into the dispute resolution structure with many more parties required to use it to either resolve disputes in their entirety or at least to narrow the questions that are to be presented to the courts. Given the challenges with enforceability caused by Brexit there is also the increasing benefit being offered in international disputes by mechanisms like the Singapore Convention which potentially allow for UK mediation settlements to be directly enforced in the growing list of countries that have ratified the convention. This was a point I made in my chapter in a recent book on International Arbitration published in Asia. Whether mediation should be made compulsory is another matter. The use of mediation information sessions has been positive in the family courts and this should probably be extended more widely. Giving parties better information is likely to increase take up on its own without significant detriment to anyone. Beyond that it should probably be for individual judges to order mediation in suitable cases but on the basis that it should be ordered relatively frequently. Nothing about the mediation process requires parties to settle their disputes but it does require them to take a long hard look at them and consider whether making a deal would be a better option than continuing to litigate. This would be an effective resolution for a significant percentage of the business in the courts currently.

If the UK is not to find itself lagging behind other jurisdictions and to preserve its reputation as a jurisdiction of choice for dispute resolution then it should be looking to offer the widest range of effective mechanisms in an integrated package to allow for parties to resolve their disputes effectively and reliably at a cost commensurate with the size of the dispute. We are not always managing this and there is a danger that court fees and litigation costs will spiral out of control. Resolving this means having modern court systems that the legal profession and others can use easily and quickly and triaging disputes rapidly so that only those matters which really need judicial time get it. There are numerous objections being advanced to these simple concepts but many of them are more about trying to keep things the way they are rather than considering the problem and then finding an appropriate solution. Hopefully, the call for evidence will have some useful responses which allow for the effective provision of justice in a fair and affordable manner.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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