2.Main Content
2007 Compulsory mediation?
Title
‘Twisting arms: court referred and court linked mediation under judicial pressure.’
What is it about?
The Automatic Referral to Mediation (ARM) pilot scheme was set up to run for a year at Central London County Court, from April 2004 to March 2005. The intention was to randomly select 100 cases each month to be referred to mediation. If one or both of the parties objected, they had to justify their reluctance to a judge. The judge would have the power to override their objections if she felt the case was suitable for mediation. A research project was set up to explore what happened when people were, in effect, compelled to mediate. Would it save them time and money? Would it save judicial and administrative time for the court? How would the parties and their lawyers react to being forced to mediate? You could lead a horse to water, but could you actually make it drink?
A few weeks after the pilot began, in May 2004, the Halsey judgment was made public. Lord Justice Dyson said, "It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court."
This clearly had an effect on the pilot ARM project, as the court could no longer insist that parties tried mediation if they objected. Unwilling parties had to be allowed to opt out.
Who did it?
The research was conducted by Professor Dame Hazel Genn (Faculty of Laws, University College London) and a number of academic colleagues: Professor Paul Fenn (University of Nottingham Business School), Marc Mason, Andrew Lane, Nadia Bechai, Lauren Gray (all at UCL) and Dr Dev Vencappa (Nottingham).
The research was commissioned by the Department for Constitutional Affairs (DCA) which has since become the Ministry of Justice.
Key findings
- In around 80% of cases, one or both parties objected to being referred to mediation
- When parties were called on to explain their objections to a judge, judicial pressure was unlikely to persuade them to mediate
- Only 14% of the cases initially referred to the scheme actually ended up in mediation
- The settlement rate followed a broadly downward trend over the year, from 69% to 38%
- The majority of cases in the ARM scheme settled out of court anyway, without going to mediation
- In cases where mediation took place, but which did not settle at mediation, parties found that they added £1,000 - £2,000 to their costs
- Parties who settled during mediation were generally positive about the process
- Parties who failed to settle during mediation complained about compulsion, pressure, and the risk of revealing their hand to their opponents. They also criticised the hot and cramped mediation rooms at the court
- Judicial time spent on mediated cases was lower, but administrative time was higher
Higher value cases, and cases not involving personal injury, were less likely to object to the referral to mediation. There were no obvious factors in predicting whether or not a case would settle.
It is also worth noting that following the Dunnett v Railtrack case in 2002, when cost penalties were first imposed on a successful party who refused to mediate, demand for the voluntary mediation scheme at Central London County Court rose significantly. However the settlement rate declined from a high of 62% in 1998, to less than 40% in 2003.
Comment
People just don’t seem to want to mediate. Over and over again, in different contexts, research seems to show that people are not as enthusiastic about going to mediation as the judges and the government think they ought to be.
The full research report is detailed and fascinating, and will repay close study. But there are some questions which can be asked about the issues which emerge in this brief summary.
What added value does mediation bring to bilateral settlement negotiations?
When the benefits of mediation are set out, it is usually promoted as a much better alternative to a hearing – quicker, cheaper, less adversarial, giving the parties more control over the outcome to their dispute. It is clear from this and other research that most cases are settled before they reach the hearing stage, usually through negotiations between the parties or their solicitors. So the question we should be asking is, what added value does mediation bring to bilateral settlement negotiations?
Why don’t people want to mediate?
For the last ten years, since Lord Woolf’s Access to Justice report, it has been government and judicial policy to promote the use of mediation in both family and civil disputes. This research, along with the recent National Audit Office report into family mediation (see 2007 Family mediation and legal aid), indicates that people are still reluctant to use mediation. Why?
- Is it still lack of information, or unfamiliarity with the process?
- Are lawyers reluctant gatekeepers who don’t want to lose their profitable clients?
- Is there something about the normal judicial process that is inherently more attractive to most parties?
Why is compulsion still on the agenda?
At the launch of Hazel Genn’s research, Judge Paul Collins, the senior judge at CLCC, argued that the courts should promote compulsory mediation as an automatic stage in the court process. Robert Nicholas, head of the Proportionate Dispute Resolution team at the Ministry of Justice, also seemed baffled by court users’ reluctance to choose mediation, an option that he believed was so patently for their benefit. He too was keen on some form of compulsion.
The Court Mediation Service Toolkit, published in May 2007 by the Courts Service and the Civil Justice Council, states that ‘research shows that mediation works best when there is some form of judicial encouragement, and that such encouragement can be quite robust.’ This statement is not borne out by Hazel Genn’s research, which indicated that robust judicial encouragement did not increase the take-up of mediation; it also suggested that increased pressure to mediate resulted in a decreased settlement rate.
Why are judges and government so convinced that mediation is best for most court users, despite the reluctance which is evident in this research?
Key websites
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