2009 Mediation and Judicial Review
This page contains an outline of this research, and a summary of the key findings. Details of how to find the full report can be found at the bottom of the page.
Title
"Mediation and Judicial Review: An empirical research study"
What is it about?
The aim of the study was to explore the value and limits of mediation in judicial review claims. Despite the considerable enthusiasm among policy makers and others for increased use of mediation, the actual take-up of mediation in judicial review cases is negligible. The study attempted to explore the reasons for this through interviews with judges, public law practitioners and mediators.
Who did it?
The research was carried out by the Public Law Project (PLP), led by PLP’s Research Director Varda Bondy, with Professor Linda Mulcahy of Birkbeck College. It was funded by the Nuffield Foundation.
Key findings
The research began with the premise that mediation of judicial review claims is rare. This was backed up by a parallel study by PLP, ‘Dynamics of Judicial Review’ – also funded by Nuffield and published in June 2009, and produced by Varda Bondy of PLP and Professor Maurice Sunkin of the University of Essex – which found that fewer than 6% of public law practitioners had either considered using mediation in any of their cases or had participated in a mediation of a public law dispute.
Among the reasons put forward by policy makers and others for the low numbers of mediations is that lawyers act as gatekeepers and block access to mediation in order to maximise their own profit from the litigation process. The research found no evidence to support this claim. Since the vast majority of JR cases settle at some stage, lawyers are clearly not prolonging litigation for their own advantage.
The research also found that many lawyers are unclear about how mediation works, and some confused it with other forms of settlement negotiations. However, it also found that even practitioners who are trained mediators and who are fully aware of the potential benefits of mediation rarely engage in mediations in public law disputes.
Many lawyers claimed that mediation was simply not appropriate for public law cases in principle – because of the need to establish judicial precedents, the need for transparency and accountability, and issues of power imbalance between unequal parties. However, these objections were not raised about settlements negotiated between lawyers. Only 5% of judicial review claims reach a final hearing; the majority are settled at some stage. As one public law solicitor argued: ‘If directly negotiated settlements are not considered constitutionally suspect, than surely neither are mediations?’
One possible explanation for the minimal use of mediation in JR cases is the way in which the JR process works to encourage settlement. Figures from the parallel study, 'The Dynamics of Judicial Review', for the first time give a clear picture of what is actually happening: most judicial review claims are settled, and most settlements satisfy the claims made in the challenge.
- As soon as a letter before claim is sent, 62% of potential cases are settled or abandoned.
- Of the cases where a claim is actually issued, 34% are withdrawn before the permission stage – the vast majority are settled in favour of the claimant, either by an agreement to review an earlier decision, or by offering a substantive benefit to the claimant.
- Of the cases where permission is granted, 56% are withdrawn before further action – again most of these settlements favoured the claimant.
In light of the high proportion of settlements, the research queried what mediation would offer above and beyond bilateral settlement negotiations between lawyers.
The study also examined the main claims made for the benefits of mediation, including that it is cheaper and quicker than litigation, and that it can offer better outcomes. It found no evidence that mediation is cheaper or quicker than judicial review. Particular characteristics of judicial review make it likely that, unless mediation occurs very early in the case, most claims would in fact be cheaper to litigate than to mediate. These characteristics include:
- It is inexpensive to issue judicial review proceedings.
- Costs are incurred early on.
- The simple judicial review procedure is cost effective, and final hearings are relatively short.
- The majority of claims settle anyway.
- Lawyers are needed in judicial review mediations.
The research found that although it is unlikely to save costs, mediation can add value in judicial review. In some cases, it can result in a better outcome for the client. In particular, in cases involving community care plans, or those where the parties experience protracted personal hostility, a successful mediation enabled the warring parties to untangle their conflict and work out a detailed solution that benefited vulnerable individuals. In some cases this took place after a judicial determination of the key legal issues in dispute. The study helpfully includes a number of actual judicial review cases where mediation was used or considered.
Comment
According to this research, it seems clear that litigation, or the threat of it, brings public bodies to the negotiating table. An offer of mediation is unlikely to be accepted by the defendant until judicial review is a potential course of action. And once a judicial review claim has been threatened or issued, then cases that can settle do so, usually as a result of discussions between the parties' lawyers. Mediation can offer added value in the sense of better outcomes in some cases, but it will be difficult to justify the additional cost of mediation when a bilateral negotiation can settle the claim.
October 2009
