What happens when mediation becomes mandatory?

For so long the idea of mandatory mediation has caused controversy and consternation in equal measure.  What is changing?  The prevailing wisdom now acknowledges the Courts are expensive, slow, under-funded and under-resourced with too few Judges and too little IT.  Today’s citizen with a low-value, straightforward dispute needs a way of resolving the dispute which suits him or her and their lifestyle.  That means: quick, fair, affordable and online. 

The reactions to mandating mediation might well include exasperation.  Frustration that for 25 years mediation has been promoted and encouraged by a plethora of means including public information programmes, pre-action protocols and more but the legal profession (the gateway to mediation) has still not enthusiastically embraced the panacea that mediation can be for the many ills afflicting the civil courts.  

In July 2019 HMCTS announced that by the end of this year they will start an opt-out mediation pilot for claims worth less than £300 within Civil Money Claims Online, offering claimants and defendants the opportunity to resolve their case out of court.  I admit claims of less than £300 are not enticing as a business opportunity but no-one should doubt this is the end of opt-out mediations in civil justice.  In fact, this is a signal of more “opt-outs” to come throughout civil justice.  The use of the phrase “opt-out” is an emollient for those who oppose mandatory mediation.   

What other developments wait in the wings ready to come front of stage and into our working lives?

The new portal being built by the Motor Insurers’ Bureau for the Ministry of Justice will also have a mediation element, obviously.  It remains to be seen who will be the mediation provider in that project.

Remaining in England and Wales, action on the recommendations of the Civil Justice Council’s ADR Working Group (which reported in November 2018) is eagerly anticipated.  Especially recommendation 20(a):

“9.20. The  terms  of  claim  documents,  Court  forms,  pre‐action  protocols  and guidance documents  already  contain  significant  prompts  towards  ADR but should be reviewed to ensure that:

• there is effectively a presumption that ADR will be attempted in any case which is not otherwise settled;”

An opt-out by another name.

In Scotland, the move to a form of mandatory mediation is underway with a consultation paper issued by Margaret Mitchell, MSP with the support of the Scottish Parliament’s Non-Government Bills Unit (NGBU).  The consultation paper can be found via this link.

The core propositions of Ms Mitchell’s consultation are to:

1. establish a new process of court-initiated mediation for relevant civil cases (cases which are excluded from the process will be set out in the Bill). When a civil case first comes before a court, the court will issue the parties with a questionnaire to help assess suitability for mediation and appoint a duty mediator who will be required to meet with the parties (in a Mediation Information Session) to discuss further and to decide whether the parties wish to proceed with mediation; and,
2. support this innovation with modern technology.

The consultation raises important issues for the mediation community and is open until 20 August 2019 after which the responses (which can be submitted online or by email or post) will be considered.  The aim is to enact legislation before the end of the current Scottish Parliamentary session in March 2021.

The question arises about the practical steps required to make such innovations happen.  Recent experience from another jurisdiction holds valuable lessons.

In Turkey, mediation was encouraged on a voluntary basis from June 2013.  It was found that 90% of all civil disputes were employment related and this led, in October 2017, to the enactment of a law requiring mediation to be undertaken before any employment claim was commenced in the Courts.  The rationale was to provide a quick and cost-effective way of resolving disputes which was a means of overcoming the shortage of Judges, this shortage is the same issue we in the UK face.  However in Turkey their shortage arises for a different reason - many judges were imprisoned following the failed coup in 2016.  The journey to mandatory mediation has been tracked in a 2 year study undertaken by the Council of Europe.  The final report from that study was published in December 2017.  The study is highly relevant for anyone contemplating the introduction of a scheme of mandatory or implied-compulsory mediation in the UK and can be found via this link: https://rm.coe.int/mediation/168075fa4d.

What other lessons have been learned?

1. Mediation cannot be used in all cases. Exceptions are disputes of a public rights nature including: divorce, child custody and real property issues;
2. No pilot was undertaken, instead online discussion fora were created whose members included representatives from Government, mediation schemes and mediation parties involved. These discussion groups have worked well enabling immediate feedback, supervision and rapid adoption and communication of better practice.  This speed of monitoring was crucial as the Government intends to roll-out mandatory mediation to commercial and consumer disputes.
3. An enhanced public and professional information project which included meetings, seminars and panels to explain the benefits of mediation together with TV advertising and the inclusion of mediation as a story-line in prime-time TV series. 
4. Costs sanctions were introduced into the Turkish system which meant that if a party did not participate meaningfully in the mediation process yet succeeded at the trial the non-participating party could not recover any costs, despite winning.
5. As one might expect the number of mediations is now significantly greater post January 2018 than during the voluntary phase. The Turkish Ministry of Justice therefore developed an online Platform as the only sensible way to manage the numbers.  The author was fortunate to recently gain insights about the progress of this mandatory mediation scheme from a Turkish lawyer, Dogan Baydar, MCIArb, who explained the process is known as the Prerequisite Mediation Law (akin perhaps to Margaret Mitchell’s proposed approach).  Dogan said he found the online platform something that will play an increasingly important role.  I am grateful to Dogan for sharing his experiences with me.
6. Finally, there was a critical shortage of appropriately qualified mediators. In this connection perhaps CIArb can play a leading role by making the Institute’s market-leading experience of training mediators available to those considering mandatory mediation in England, Wales and Scotland.  

In this short piece, I have tried to give a flavour of things to come and what needs to be done.

Tony N Guise