UK All-Party Parliamentary Group for ADR session – Mandatory Mediation

The UK All-Party Parliamentary Group for Alternative Dispute Resolution (APPG for ADR) met on Tuesday 17 May in Portcullis House, for a one-hour session discussing what place mandatory mediation has in the UK and what it would look like practically should it be adopted.

CIArb serves as the neutral Secretariat to the group, and this was the first fully in-person meeting organised since the start of the pandemic. John Howell MP, Chair of the APPG for ADR welcomed the opportunity to sit together at the same table to share ideas and opened the session by briefly introducing the topic and stressing the importance of the event. Other MPs in attendance included Christina Rees MP, Jeremy Wright MP QC, Bim Afolami MP and Alberto Costa MP.

The panellists bringing their expert opinions to the meeting were: Dr Isabel Phillips, Director of ADR and Mediation Development, CIArb; Gill Mansfield FCIArb, International Commercial Mediator, Gill Mansfield Mediation; Andrew Miller QC, Mediator and Arbitrator, 2 Temple Gardens; and, James South, Chief-Executive, CEDR.

In her speech, Isabel drew attention to three areas: information provision and timing, data and the use of it, plus systems of delivery. On information provision, she drew on different mandatory systems around the globe, including Greece, Italy, India, Nigeria, Kenya and Israel.

She presented the diagram below. This illustrates when the different mandatory across the world screen legal cases and/or refer parties to mediation. It reinforces the logic of early mediation, as well as allowing for multiple exit points through mediation during court processes; different cases are ‘ripe’ for settlement at different points, and not settling seldom means ‘failure’.  On data collection, she highlighted the need for the UK to understand what is happening in the interplay between court and voluntary mediation. This data is desperately needed to enable informed decisions about the best way forward.

The diagram also reinforces the point that for most businesses court processes are a distraction from doing business. Therefore, on systems if mediation is to be mandated, it must therefore be in the context of parties have easy access to quality information and advice both on mediation and on their legal case. In other words, any system must learn from the problems experienced by other jurisdictions mandatory systems. These include not resourcing the system properly, overregulating mediators, transferring the burden of mediating to judges, ignoring the need for parties (particularly at the lower end of the cost spectrum) to access legal advice.

James’s contribution was the most stridently positive about mandatory mediation, and he reiterated CEDR’s support for using the existing framework of professional bodies regulation (with independent benchmarking to ensure minimum standards)” rather than imposing a new regulator.

Gill referred to the recent CJC report and stressed that there are serious misgivings about the direction of travel suggested by some aspects of the report. She acknowledged that there is broad agreement that something needs to change as the current system is not working effectively and agreed with Master of the Rolls Sir Geoffrey Vos that too many cases unnecessarily end up before the courts. She stressed the need to be careful that mediation doesn’t become a tick box exercise on the way to litigation, and that there is a need to protect the key principles of mediation – confidentiality, the “without prejudice” privilege, the use of a neutral, impartial third party, and party autonomy, to ensure that the quality of the process and outcomes is maintained.

Andrew emphasised that we already know that mediation works, is more flexible than litigation and in the majority of cases it provides a more economical resolution for the parties.  Andrew stressed that in considering mandatory mediation it was crucial to ensure a better education and understanding of what exactly mediation is, how it is used and its advantages.  He said that this education and understanding needs to be by all users of mediation including the legal fraternity and the judiciary.

After each panellist gave their speeches, there was a fruitful question and answer session between those in the room, which included questions of funding, how mediators would cope with increase of mediation were it to become mandatory and how to help produce a positive cultural shift in this field. The Chair John Howell MP (far left above) concluded the session by thanking the panellists and attendees both in the room and online and welcomed ongoing dialogue on this matter.

Should you be interested in more details of the APPG, please email Alexandra Braby at abraby@ciarb.org who will be able to discuss more with you.