2004 Civil disputes mediation
This page contains an outline of this review, 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
“The Use of Mediation to Settle Civil Justice Disputes: A Review of Evidence”, Scottish Executive Legal Studies Research Programme, Research findings No.50/2004
What is it about?
There are many arguments for encouraging the use of mediation to resolve civil disputes, but there is little reliable information about current usage and effectiveness. This report aimed to review published evidence for the use of mediation in England and Scotland, and to offer suggestions for future policy and practice.
Who did it?
The review was conducted by Fiona M. MacDonald, from the Legal Studies Research Team of the Scottish Executive, and published in 2004.
Key findings
The review came up with a balanced but unresolved overview of the use of mediation. On the one hand, it seems “common sense” to claim that mediation is a more positive experience than court, with “better potential for achieving closure”. On the other hand, some research indicates:
- Parties may feel less than empowered and relations may be no less damaged than if litigation were pursued.
- People may find the experience painful and distressing, and feel coerced into participation (Brown et al 2003; Genn 2001).
- Mediation can magnify power imbalances if a skilled mediator does not manage these well.
- If one side feels that justice has not been done, or that they have compromised too much, success is doubtful.
- If residual or peripheral issues are unresolved in a mediated settlement, the dispute may recur, possibly negating cost or time savings.
The problem is that little research has been done, and any conclusions are so tentative or so specific to particular schemes, that it is not easy to come up with a simple answer to questions such as “Does mediation work?” or “Is mediation more effective than litigation?” The paper concludes that; “Fundamentally, the results of mediation cannot be simply compared with those from using legal remedies, and success must be judged from various perspectives.”
However, the survey does collate some general conclusions from the three different pieces of research which Hazel Genn has conducted on mediation in the Central London County Court, the Court of Appeal, and the Commercial Court:
- Willingness to use mediation, even when it is free, is low.
- Timing is critical – and early on may not be best.
- Whether a case really is suitable must be considered carefully.
- Mediation can reduce court time, but truly comparable information for other routes is needed.
- Cost savings are unclear.
- Mediation can lead to more acceptable agreements and higher customer satisfaction, but these need further study to confirm these and other factors.
- Mediation succeeds best when there is a relationship to maintain.
- Most mediated cases reached resolution and did so earlier than litigated ones.
- Available data do not reveal if agreements have endured.
- Mediation can widen access to justice for those who cannot afford litigation.
- Evidence does not indicate an advantage from schemes being court-annexed or not, in terms of outcomes.
- Civil Procedure Rules introduced with the Woolf reforms may have made ADR more attractive in England and Wales.
- Failure to reach settlement through mediation can raise overall costs.
- Court schemes demonstrate the potential importance of mediation within an integrated Community Legal Service in addressing unmet legal need.
The review also concluded:
- The timing of mediation, the willingness and informed expectations of the parties, and preparation for participation are critical factors that influence the likelihood of a satisfying resolution.
- Questions about funding, regulation, training for mediators and non-mediators in the justice system, quality assurance and ethics all need to be explored.
