2.Main Content
2007 Central London County Court
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
‘Twisting arms: court referred and court linked mediation under judicial pressure.’
What is it about?
Since 1996, Central London County Court has run a voluntary mediation scheme. During the first two years it was a pilot scheme, and an evaluation by Hazel Genn was published in 1998. A summary of this research can be found on the 1998 Central London County Court page of this website. From 1998 the scheme became a permanent part of the court process.
Since then, information about the mediation scheme has been sent to both parties once a defence has been received by the court. The choice whether or not to use the scheme is entirely voluntary. If both parties agree to try mediation, the court fee for mediation is £100 per party: this covers a three-hour mediation session in mediation rooms on the court premises, from 4.30pm – 7.30pm, after the court business is over for the day.
This review published in May 2007 looks at the number and type of cases mediated since the 1998 evaluation, the outcome of the cases, and what has happened to the settlement rate at mediation during this time. It also explores the views of parties and their lawyers about the mediation process. The research is based on a statistical survey of cases from 1999 to 2004, and on questionnaires sent to parties taking part in the scheme during 2003.
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
More pressure, less settlement?
The headline news is that there has been an increase in the use of the scheme, an increase which was particularly steep after the Dunnet v Railtrack case in 2002, when a combination of increasing judicial direction and cost penalties made refusing ADR a risky strategy. Just 72 cases were mediated in 1999, and 293 were mediated in 2004. At the same time, the settlement rate at mediation fell dramatically – from 62% during the1996-98 pilot, to 45% in 2004.
Hazel Genn suggests that there is a direct correlation between these two figures: the more pressure you put on people to mediate without regard to whether or not the case is suitable, the less likely they are to settle at mediation. This interpretation is supported by the recent evaluation of other court-based mediation schemes at Exeter and Birmingham. In Birmingham, the voluntary court mediation scheme offered during 1999 – 2004 had a 60% settlement rate. In Exeter, where judges put considerable pressure on parties to mediate, the settlement rate was 40%, and only 30% in cases where judges had directly referred cases.
How do parties and their lawyers feel about mediation?
Why mediate?
Court direction, pressure from the judge, or fear of cost penalties were given as the main reasons for attempting mediation by 25% of the users and their lawyers who responded to the survey questionnaire. This was a big change from the 1998 evaluation, where only 4% of claimants and 7% of defendants said that a judge had told them to mediate.
Why do cases settle at mediation?
There were few significant factors which indicated which cases are likely to settle at mediation – Hazel Genn observes that settlement seems to owe more to chance than to observable factors such as case type, value or representation.
Where cases did settle at mediation, lawyers and mediators attributed success to two things:
- The willingness of both parties to negotiate and compromise
- The skill of the mediator
Where cases failed to settle, explanations were varied. The most common suggestion was the intransigence of the opponent; Hazel Genn interprets this as indicating that at least one party was attending mediation with reluctance, and without any serious intention to negotiate. Other reasons given include:
- The gulf between the parties was too great
- The mediator was lacking in skills, or in understanding of the issues
- The three hour time constraint
- The absence of a key player with the authority to settle
- The poor facilities at the court – the mediation rooms were too hot, too small, too close together and there were no refreshments available
Is mediation quicker and cheaper than going to court?
One of the claims often made for mediation is that it is quicker and cheaper than going to court. However, this seems to depend heavily on the outcome of the mediation.
- Where the case was settled at the mediation appointment, 61% of parties and 90% of representatives thought costs had been saved. Where the case did not settle, 45% of the parties and 55% of representatives thought costs had increased.
- Where the cases was settled at mediation, 73% of parties and 72% of representatives thought that time had been saved. Where the case did not settle, 56% of parties and 61% of representatives thought the additional process had increased the overall time taken to resolve the case
Comment
Hazel Genn comments that both the ARM scheme and the voluntary scheme at CLCC suggest that the motivation and willingness of parties to negotiate and compromise is critical to the success of mediation. ‘Facilitation and encouragement together with selective and appropriate pressure are likely to be more effective and possibly more efficient than blanket coercion to mediate’.
This is in direct contrast with the views of a number of judges, who continue to press for some form of compulsory mediation. For example, Mr Justice Lightman, speaking at S J Berwin’s summer reception for mediators and mediation users, criticised the Appeal Court’s decision in Halsey that mediation should not be compulsory. He said this was ‘wrong and unreasonable’, and claimed that compulsory mediation works perfectly well in other jurisdictions (Law Society Gazette 104/29, 19th July 2007, front page). He said that ‘an order for mediation does not interfere with the right to a trial: at most it merely imposes a short delay to afford an opportunity for settlement’. Hazel Genn’s research found that unsettled mediations take longer and cost more; so compulsory mediation may not block eventual access to a hearing, but it does make it more difficult. It is also worth noting from the research that over two thirds of unsuccessful mediations reach a settlement at a later stage anyway. If judges and policy-makers are to justify compulsory mediation in the face of this evidence, they will have to demonstrate what extra value mediation brings to the process of settlement by which the vast majority of disputes are resolved.
Mediation clearly works in some cases, though it is hard for researchers to identify in advance (or even in retrospect) which cases are likely to benefit. There seems to be a somewhat circular definition – cases appropriate for mediation are cases where the parties are willing to mediate. Perhaps less effort could be put into trying to put pressure on unwilling parties to mediate, and more into identifying which cases should be encouraged to mediate, and why.
July 2007
Key websites
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