In England and Wales the Ministry of Justice is looking at integrating mediation into the Court system.
Here we look at the the different systems in place in other countries:
Australia Federal court: Mediation is integrated into the federal court process. Courts can order mediation and this is carried out by judicial registrars who manage the process and decide whether mediation should include or exclude counsel. The judicial registrars have different areas of specialist expertise.
Canada – Ontario: In the last five years strategies have been introduced to resolve cases in the face of an increase in the number of cases, including a requirement that all civil cases (not commercial) must go to a private mediation before they can get a trial date, and if that does not succeed must have a judicial mediation before the trial date.
China: In the face of resource challenges the litigation process has recently been simplified and dispute resolution prioritised. China has litigation service centres where filing of claims, mediation and trial are all in one place, including counters of pro bono lawyers. Mediation centres guide parties to choose the right kind of dispute resolution and parties are forced to participate in mediation. China also has an advanced online dispute resolution process with online mediation procedural rules. There is a unified online mediation platform which has dealt with over 24 million cases so far, with the average case concluding its mediation journey in 17 days. It has been said that 51 cases per minute are settled pre–litigation through the online system.
By way of contrast to this hi-tech system, in remote areas of China there are judges who will ride out to villages on horseback and provide leaflets about the availability of mediation and carry out mediations at parties’ homes.
Germany: In their civil law system, following issue of a claim the judge decides whether to use the written procedure or to have an early oral hearing. In civil proceedings the judge starts by asking parties to a conciliation meeting which is compulsory unless they have already attempted mediation. The judge carries out an early neutral evaluation (ENE) in a 15 to 30 minute appointment and, if there is no agreement, parties make their applications and the judge makes directions. The judge has a strong proactive role, regularly stating their view and suggesting solutions to the parties throughout proceedings. All parties can ask for judicial mediation. (The delegation stated the judges were so keen that they paid for their own mediation training.) The success rate in judicial mediation is around 70% and has lowered the case burden. It is now common to have a separate “conciliation judge” dealing with mediations, which are in private and voluntary, with no extra fees for the parties.
Malaysia: In 2010 a practice direction was issued to establish court mediation which is now a required part of court proceedings. There are 14 mediation centres with permanent mediators. Judges can attend mediation courses to obtain accreditation. Mediation can be carried out at any stage of the proceedings – private or judge led mediation. Judicial mediation is free and must take place within one month of referral to the court.
Philippines: Judicial dispute resolution is part of a three-stage process for pending cases. The Alternative Dispute Resolution Act 2004 promotes ADR and judges have been trained to deal with judicial dispute resolution nationwide. The Philippines Mediation Office transferred to the main court centre to improve efficiency. New guidelines were introduced in 2021 and Court Annexed Mediation is mandatory for civil cases (except environment cases). If this fails the judge can order referral to an ADR judge. There is also appellate court mediation available. After judicial dispute resolution has taken place the judge sends a report to the presiding judge. The judge carrying out dispute resolution keeps the case until trial.
Singapore: Over 80% of cases are settled through court dispute resolution processes, which take place from the first fixed case conference where a judge will carry out ENE on issues of liability and apportionment to help negotiations. The judge can refer a case to mediation, and mediation judges are assigned by the court at an early stage. Singapore courts can also access volunteer mediators who are usually attorneys. If parties appear close to resolution the court can list a further case conference for dispute resolution, and dispute resolution is factored into case management. There are pre-action protocols for the state courts requiring exchanges of documents and negotiations prior to issue of a claim.
USA – Southern District of New York: The court annexed mediation (“CAM”) program has been in place since 1992 and there is a fully staffed mediation office with around 243 volunteer attorney mediators who are required to keep their training up-to-date. Some cases are automatically referred to CAM, such as wages claims, employment issues, special educational needs decisions, and otherwise cases are referred by judges if appropriate. In respect of Federal Court, ADR takes place by way of settlement conferences with magistrate judges and CAM. Once a judge is assigned, the judge keeps that case to trial. The parties can, however, request a magistrate judge settlement conference, which most parties prefer. Around 60% of referred cases settle.