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Mayo Wynne Baxter
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Nick Stockley, Litigation Partner, Mayo Wynne Baxter champions voluntary mediation at a time of dispute, but has concerns over the idea of it becoming compulsory VOLUNTARY BECOMES INVOLUNTARY
Anyone engaged in a dispute will, more often than not, try to resolve the matter through some sort of ‘sensible discussion’ with the other side before they contact their solicitor. There will be the initial exchange of letters, emails, text messages and possibly, even a face-toface meeting.
If things cannot be resolved, then the parties contact their respective lawyers, if they had not done so already. Almost any solicitor will, nowadays, propose the use of mediation in order to try to find a resolution.
Mediation can be summarised as follows: it is a voluntary process whereby the disputing parties engage the services of an independent third party (the ‘mediator’) who will help the parties try to find a resolution. The mediation process is both confidential and without prejudice – i.e., what is said at the mediation stays at the mediation.
Parties to a dispute often feel restricted in what they say because it can be used as evidence against them. Mediation creates a forum where parties can speak freely to each other without feeling restricted because it is both without prejudice and confidential. Mediations can take place either in person or remotely by way of videocall.
Mediation can be arranged at short notice and aims to give the parties a chance to find better creative solutions and remedies than the Court can offer. Mediations normally take place over a single day but can extend to either a couple of days or over a number of mediations.
If the parties agree on settlement terms, then those terms will become legally binding on the parties and will become a court order. If a party either refuses or ignores an invitation to mediation, then they may be penalised on costs regardless of the final outcome of the dispute. i.e. You can win at a trial but then you have to pay the other side’s legal costs because you refused mediation.
It can be both cheaper, quicker, and more flexible than any court process; it protects parties from any public exposure and can be used in almost any dispute. These advantages are the underlying reasons why the civil courts think that compulsory mediation is a good idea. Some courts have already introduced compulsory court-led settlement meetings which are chaired by a district judge.
Other courts have set aside specific ‘settlement weeks’ in the court’s calendar during which parties will have to attend the court and they can try to settle. Statistically speaking, the majority of cases that go to mediation either settle on the day or at sometime soon afterwards.
The key to a successful mediation is very often that it is voluntary process – i.e., the parties go to the mediation wanting to resolve matters. However, there are moves afoot to make mediation compulsory in the civil court once legal proceedings have started. This means that the court will force parties around the negotiating table. The main criticisms with these proposals are as follows.
1Forcing a process, which is best done voluntarily, can be counter-productive; parties may go to mediation simply to tick the compulsory mediation box which goes against the underlying benefit of mediation.
2An additional layer of costs is being added to a litigation process which can be very expensive; parties can try to use the mediation stage to either unnecessarily draw out a process and/or try to force the other side to spend more money than they can afford. Mediation will become part of an overall strategy rather than part of an overall solution.
❛❛ As with almost any dispute resolution process, one size does not fit all ❜❜
3The current cost penalties for refusing mediation make it quasi-compulsory anyway; the current case law is such that it is very difficult to either refuse or ignore an invitation to mediation. So the question arises -– what need is there to formalise things further?
4What is wrong with the current system where mediation is not compulsory? Is this measure being introduced because it may alleviate the pressure on the court rather than benefit the parties? As with almost any dispute resolution process, one size does not fit all, especially with mediation. The majority of disputing parties are now aware of mediation. The legal profession accepts that almost any dispute can go to mediation. However, that does not necessarily mean that a voluntary process will work if it becomes involuntary. It is the solicitors’ role to consider whether mediation is appropriate given their comprehensive knowledge of both the facts and personalities involved. They will advise their client whether mediation is a good idea or not rather than just act in response to a blanket edict from the court.
Mediation has become much more commonplace in any dispute but forcing a voluntary process is a step which does not need to be taken.
