Civil mediation: a measured approach?

Abstract

The mediation movement in Britain over the last 15 years has been enormously successful in establishing a firm place in policy debates on the administration of civil and family justice. Arguably, it has taken the lead and framed the content of debate outside the criminal sphere. The mediation movement has challenged the purpose of the civil and family justice systems, the value of public courts, the relevance of judicial determination to modern disputes and the legal profession's commitment to representative advocacy. We have witnessed a revolution in dispute resolution discourse. At the beginning of the twenty-first century, political arguments, judicial speeches and policy pronouncements about how civil and family justice should be working now focus on how to encourage or force more people to mediate, on worrying about why more people aren't mediating, and on promoting the value of mediation to the justice system and society as a whole. ¹

Keywords:

• mediation
• dispute resolution
• criminal justice costs

Notes

 1. See comments by Lord Bach, 9 February 2009; Lord Philips of Worth Matravers, Alternative dispute resolution: an English viewpoint, Speech, India, 29 March 2008 [online]. Available from: http://www.judiciary.gov.uk/; Lord Justice Clarke, MR, Speech to annual mediation council conference, Birmingham, May 2008 [online]. Available from: http://www.judiciary.gov.uk. See also the Legal Services consultation document, A new focus for civil legal aid: encouraging early resolution; discouraging unnecessary litigation (DCA 2004) and the Government Response at http://www.dca.gov.uk/response-litigation.pdf, which focused on family cases and ‘discouraging unnecessary publicly-funded litigation’. See also on judicial review, Bondy et al. (2005).

 2. For an extended discussion of these issues and the place of ADR in civil justice reforms, see Chapter 3, ‘ADR and civil justice: what's justice got to do with it?’ in Genn (2009).

 3. For estimates of the proportion of civil disputes that involve the issue of legal proceedings and trial, see Genn (1999) and Pascoe et al. (The Stationery Office).

 4. The 1990 Act also introduced no-win, no-fee arrangements to provide greater access to justice for middle-income groups not eligible for legal aid (S58 Courts and Legal Services Act 1990).

 5. CPR R1.4 (2) and CPR R26.4: stay of proceedings for settlement at the court's instigation. Factors to be taken into account when deciding costs issues include ‘the efforts made, if any before and during the proceedings in order to try and resolve the dispute’ (Parts 1 and 44 Civil Procedure Rules). In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including the conduct of the parties before and during the proceedings.

 6. CPR 26.4 and Part 44 costs discretion: ‘The court will encourage the use of ADR at case management conferences and pre-trial reviews, and will take into account whether the parties have unreasonably refused to try ADR’.

 7. This impression was reinforced by the decision of the Court of Appeal in Dunnett v. Railtrack plc [2002] EWCA Civ 2003, in which the Court denied the successful defendant their legal costs because in the court's view they had behaved unreasonably in refusing to contemplate mediation after it had been suggested by the Court.

 8. See the Legal Services Commission 2005 Funding Code, Criterion 5.4.3.

 9. See Halsey v. Milton Keynes General NHS Trust, [2004] EWCA (Civ) 576.

10. See the evaluation reports commissioned by the Department for Constitutional Affairs cited on p. 197.

11. See also the results of a recent evaluation of judicial mediation in employment discrimination disputes which found no saving in cost or time (Urwin et al. 2010). The study found that judicial mediation was an expensive process to administer and was not offset by the estimated benefits (both direct and indirect) of the process.

12. See studies referred to above in note 5.

13. This emerges from the findings of the ARM pilot and analyses of the voluntary mediation scheme at Central London County Court where the settlement rate declined from the high of 62% in 1998 to below 40% in 2000 and 2003. This interpretation for the falling settlement rate is supported by the views of mediators interviewed for that study (Genn et al. 2007, Ch. 6).

14. See statements by Bridget Prentice regarding the truth of this in Australia. See for example, Australian Government, Attorney General's Department (2009); see also the Attorney General's proposals to amend the Family Law Act 1975 to permit mediators to be able to give an arbitral ruling in mediation if agreement cannot be reached.

15. See the Fundamental Review of Family Justice, launched in January 2010, Terms of Reference [online]. Available from: http://www.justice.gov.uk/news/docs/family-justice-review-terms-reference.pdf.

16. The quote is taken from an article by Professor Zeng Xianyi, Dean, Faculty of Law at Renmin University of China (2009). Quoted in Hong Kong Department of Justice Working Group on Mediation Report [online]. Available from: http://www.doj.gov.hk/eng/public/pdf/2010/med20100208e.pdf.

17. Lord Igor Judge, LCJ, speech to Third Civil Mediation Council National Conference, May 2009.

18. Lord Neuberger of Abbotsbury, MR, speech to the Fourth Civil Mediation Council National Conference, Educating Future Mediators, London, 11 May 2010.

19. Lord Neuberger of Abbotsbury, MR, ‘Equity, ADR, arbitration and the law: different dimensions of justice’, the Fourth Keating Lecture, Lincoln's Inn, 19 May 2010.