Introduction
This essay will address the question in three stages. Firstly, by identifying the pros and cons of imposing mandatory mediation. Secondly, by analysing the effectiveness of mediation in jurisdictions where it has been made mandatory. Finally, by attempting to identify any common factors, possible causes for the results, and reaching a conclusion. The essay will also consider the long-term acceptance by litigants and resulting sustainability.
Pros
- The imposition of mandatory mediation would relieve the workload of the existing judicial system.
- It would accelerate the use of mediation, providing a cheaper, quicker, and less stressful method of resolving disputes.
- It would cause more disputes to be resolved in private, which in many situations is highly desirable for one or both parties.
- It would promote a greater feeling of satisfaction in the legal system because the opportunity for increased control over the proceedings for both parties would tend to increase the likelihood of settlements being amicable.
Cons
- Mandatory mediation could be considered to overstep the intended purpose and amount to coercion. It has been suggested that this would breach the natural right to justice.
- There is a natural tendency to resist anything that is imposed rather than that which is entered into voluntarily.
- A mediation that does not produce a settlement will be regarded as a failure; as opposed to a decision by a judge, or the court of appeal, that always provides finality. There is obviously a possibility that a failed mediation can lead to a swifter trial, but that does not remove the dissatisfaction felt by the parties at the time. Both will feel that they have been forced to invest time and money in something that has not resolved their dispute.
- That initial impression will be the lasting one and what will be promulgated by the litigants and the lawyers. With social media being what it is, that will be greatly damaging to mediation as an effective form of alternative dispute resolution (ADR).
On balance, this suggests that the positive effects of introducing mandatory mediation in certain types of cases may outweigh the negatives. However, the negatives are so strong that they are likely to prove insurmountable for most types of disputes—at least for the time being.
What has been the effect of imposing mandatory mediation?
Jurisdictions such as Italy, Ontario, Turkey, and some states in the USA have also imposed mandatory mediation. Results have been mixed, but in most cases, modifications have been necessary.
Italy started to encourage the use of mediation as long ago as 1993, but take-up was negligible. Mandatory mediation in certain types of cases was imposed in 2011 but, due to constitutional issues, had to be modified in late 2012. This was done by limiting it to a smaller range of disputes. Not surprisingly, the number of mediations rose sharply but then declined over time.
In September 2013, Italy’s Ministry of Justice reacted to this by introducing a mandatory mediation requirement for an experimental period of four years for certain categories of cases. However, engagement was limited to an initial meeting only. The requirement to fully engage in the process and pay the resulting fees was removed.
The results of this experiment and the subsequent adoption show that some 200,000 cases per year, representing 8% of all civil disputes, attended an initial mediation meeting. Of these, over 43% proceeded to a full mediation, where success rates ranged from a low of just under 50% to a high of 70%, depending on the mediation service used. In disputes that were subjected to a mandatory initial session, many went on to achieve a successful outcome. This has relieved the courts of 16% of cases. Not surprisingly, the Italian Ministry of Justice is now considering widening the range of disputes that will be required to go through this process. It nevertheless suggests that blanket mandatory mediation was unsuccessful.
Conclusion
The most likely outcome is that the UK will probably adopt the recommendations in the Civil Justice Council’s ADR working group reports of 2017 and 2019. As such, for the time being, mediation is not likely to be made mandatory for all categories of cases. The onus will pass to the opposing parties in the dispute, who may both engage voluntarily or when one of them issues a Notice to Mediate.
The motivation for this may be due to the threat of not being able to recover their costs if they succeeded in the litigation. It may follow advice from their legal representative. In any event, if mediation is entered into by the parties rather than being imposed on them, the main objections to it being mandatory can be avoided.
Mediation requires a willingness by the parties to negotiate. An effective mediator will assist them in finding common ground and, acting neutrally, broker a settlement. However, if one or both parties feel that the mediation is being forced on them, they will not be receptive, and the mediation is likely to fail. The resulting grievance will be focused on the justice system that mandated the mediation.
For this reason, the most likely way mediation will become more widely used is through:
- Actively promoting its use
- Improving the success rate through increasing the number of better trained mediators
- Increasing specialisation by mediators in industry sectors
- Utilising new technology such as Zoom, Skype, and Teams to increase accessibility and reduce costs
On close analysis, it appears that market forces will overtake discussions on the implementation of mandatory mediation, and it will become more widely used anyway.
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