Useful articles on mediation
In this article Jacqui reviews the recently published report of the Civil Justice Council on Compulsory ADR.
This report covers two areas:
The review considered various earlier cases including Halsey v Milton Keynes (2004), Lomax v Lomax (2019) and the European Court of Justice’s decision in Rosalba Alassini v Telecom Italia (2010), where the court held that Italian telecoms legislation which required customers suing phone companies to attempt mediation did not breach Article 6 of the ECHR. It points out that in this case the ADR process was free and caused no delay to the ultimate resolution.
The report concludes:
‘Any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights. If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation then there is not “an unacceptable constraint” in the right of access to the court’
Sanctions for non-compliance
The report considered what could be appropriate consequences of failing to comply with a court order or rule compelling mediation. It concludes that ADR could no longer be treated as external, sperate or indeed alternative to the court process and that orders requiring participation in ADR should be enforced and those who failed to attend should be sanctioned. There is no reason why the sanction should not be striking out the claim/defence.
The report comes to no conclusions on when ADR, particularly mediation, should be compelled. The overall principle is that ‘litigants should not be required to engage in ADR which is a disproportionate burden on their time or resources.”
It does, however, state in relation to Early Neutral Evaluation (‘ENE’) that:
‘There is much to be said for ENE in all cases other than the most complex, combined with a straightforward requirement of participation in ADR at an appropriate stage of the procedure’.
In my experience ENE is the form of ADR most lawyers advise their clients not to do. It provides no flexibility to talk around wider issues and reach a practical settlement such as can be achieved at a mediation.
The conclusion is
‘We think that as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not to be considered in this context also’.
There is no elaboration on what is ‘short and cheap’.
The concern is that mediation fees may represent a disproportionate cost in many low value cases. However, if fixed costs mediation schemes continue to develop for use in low value claims this objection may lose its force.
In a rather contradictory way the report identifies boundary and contentious probate disputes as areas that may be most suited to compulsion. In my experience these disputes would not come within the remit of ‘short and cheap’.
The risk of stating that mediation can only be compulsory if it is low cost is that if you get inexperienced mediators, and the results are not as good, compulsion will be seen to have failed. Also, there is no comparison of the costs of a mediation to that of a trial. Most mediator’s fees would come within the amount of irrecoverable costs even if a party were to win at trial.
The report also has concerns that mediation is unregulated. It states there needs to be ‘sufficient confidence in the neutral person, the ADR provider’ It assumes that where the neutral is court-sponsored or is indeed a judge it is ‘plainly easier to justify compulsion.’
It references the efforts of the Civil Mediation Council in relation to regulation but goes on the state that ‘We think that if mediation is to be compulsory, more systematic regulation is required.’ No elaboration is offered as to what that might involve.
In my view this report, so far as it relates to mediation, requires a lot more thought and a look at the real world. You will not get experienced and competent mediators to satisfy ‘regulation’ if you expect them to compromise a successful model and work ‘on the cheap’.
A longer version of this article first appeared in the Estates Gazette