Recently, the Civil Justice Council invited submissions on how to encourage greater use of Mediation in the Civil Courts. The Law Society’s submission this month argues that lawyers and consumers need to ‘buy into’ the use of Mediation and other Alternative Dispute Resolution methods.
So how can this be achieved? Higher Court fees have nudged more disputes towards early Mediation, as have costs’ budgeting and pre-action protocols. Increased use of Mediation and ADR clauses in commercial contracts would make a difference, albeit not immediately. Probably a complete culture change is required.
The Law Society’s submission advises against mandatory Mediation or ADR as a condition for issuing proceedings in the Civil Courts because it would ‘frustrate the principle’ that litigants should have unimpeded access to the courts. Cynics often say that lawyers discourage ADR because it signifies an Alarming Drop in Revenue.
However, I think that there is another strong reason for avoiding mandatory Mediation. In my experience, the best way to get disputing parties to ‘buy into’ Mediation is to point to the high proportion of cases which settle through Mediation. However, that high proportion is not based on a random sample of disputes: it is based on a self-selecting group of cases in which all the parties have voluntarily agreed to try mediation. There is no reason to suppose that the same outcomes would be achieved in mandatory mediations. And if success rates in Mediations fell as a result, that would be a terrible shame.