Mediation – where do we go now?
You may well be forgiven for thinking that developments in the mediation world have come to a halt. Lawyers are more concerned about the impending Brexit debacle, which could result in restrictions on lawyers practising in the EU and advising on EU legal matters, as well as the inability to enforce judgments and bring claims in the EU. Many developments in the mediation field upon which we rely have emanated from Europe, such as the Mediation Directive, the Alternate Dispute Resolution (ADR) Directive and the European Code of Conduct for Mediators. No doubt these developments will continue, but without us.
What the Brexit negotiations have shown me, if nothing else, is just how much we could do with brushing up on our negotiation skills in the UK. The same applies in the litigation and business environment, in my view. For that reason, I am developing a Civil Mediation Council approved mediator training course, with a discount for Section members (discount code: LAWSOC18).
State of play
Many traders are still reluctant to signpost to ADR providers, despite the regulations. They would often prefer to defend claims in the small claims court than reach a reasonable compromise. Many litigators still see it as a sign of weakness to offer ADR, and many clients still expect to steam ahead aggressively with litigation.
The judiciary have also expressed a clear line of argument that mediation and settlement of cases stifle the development of the common law (although a cynic might add that if more cases settled or were dealt with through ADR processes, we would need fewer judges).
Unfortunately, money is the key. When Lord Justice Briggs pledged to take the ‘A’ out of ADR in his 2016 Civil Courts Structure Review – recommending the reinstatement of the National Mediation Helpline and proposing an out-of-hours court-based mediation service – Richard Susskind, of online dispute resolution fame, expressed it to be the happiest day of his life. Sadly, the A is very much still part of ADR and the Online Solutions Court appears to have been stillborn, with the National Audit Office recently criticising the court reform process.
Sadly, the A is very much still part of ADR
Nonetheless, visionaries continue to believe in the mediation cause, and there is evidence of an increase in mediation use, according to the Centre for Effective Dispute Resolution (CEDR) annual survey. In May, I attended the inaugural EU ADR Assembly and was pleased to find a large contingent from the UK, demonstrating a belief that – like Iceland – we will remain engaged in the ADR Regulations process, even after Brexit.
The real potential gamechanger will be the final report from the Civil Justice Council (CJC) ADR working group in mid-October. In its provisional report, it floated the idea of making mediation opt-out rather than opt-in, but it remains to be seen whether it is bold enough to put its money where its mouth is.
Manchester mediation pilot
In September 2017, I set up the Manchester mediation pilot, designed to provide a cost-effective mediation offering for litigants in the north-west. While Manchester County Court was eventually persuaded to allow some rooms in the court building to be used for mediation, so far there has unfortunately not been a great deal of buy-in from the district judges in terms of recommendation orders.
The Law Society recently published analysis showing that the cost of running a single courtroom for a day is £2,692 – not including legal advice. Despite the fact that settled cases save court time, there is simply no budget for an out-of-hours court-based scheme at the moment.
The pilot is due to continue for two years. It does not cover personal injury or clinical negligence claims, which appears to be shortsighted to me. Yes, such cases can be resolved in joint settlement meetings, but NHS Resolution recently recognised the value of mediation in its annual report, following the creation of its own mediation scheme in December 2016. Contracting parties, particularly in the public sector, are incorporating more dispute resolution clauses in contracts, and these are increasingly enforceable if properly drafted. These do not need to incorporate the traditional, expensive mediation providers.
It is too early to say whether mediation will now come of age. Given the positive feedback I have received from parties following successful (and unsuccessful) mediations – and the savings that can be made in terms of time, money and health – I hope that the CJC recommends an opt-out system as well as clearer rules regarding penalties for those who refuse mediation, although I am not holding my breath.