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Francesca Berry and Karen Hutchinson look at the increasing popularity and changing attitudes towards mediation as an alternative to litigation in light of the recently published recommendations of the Civil Justice Committee on Alternative Dispute Resolution.
On one of my first days as a trainee solicitor, I was told a story by my supervisor about a mediation he had recently attended on behalf of a certain airline. He was waiting for the client to arrive so that the initial group session could begin when he received a phone call ordering him to leave immediately. Mediation, the client had decided, was for wimps, which he most certainly was not.
Although in the several years since this incident occurred mediation has become far more commonplace, particularly in the context of high-value commercial disputes, for many this attitude still prevails. Despite the clear downsides of litigation (costs, risk, complexity, formality, publicity to name but a few), it remains the usual first choice for most disputants.
Even the significant increases in Court fees in recent years do not seem to have dissuaded the majority from litigating first and mediating later (or in many cases not at all). Even if they are open to the concept of mediation, many litigants and their lawyers remain of the view that they must not be seen to blink first; that being the party which suggests mediation is a sign of weakness. Such an attitude often results in a mediation not taking place until well into the lifecycle of a case by which time, in a high-value commercial dispute, hundreds of thousands or even millions of pounds will already have been incurred in costs.
The psychology behind the problem
Prominent mediator and former barrister Paul Randolph is of the view that this entrenched mind-set is down to our psychological makeup. In his article, The psychological case for compulsory meditation, (The Times, 9 November 2017) he states: “We are a species programmed not to compromise but to win … We have an innate aggressive survival instinct that transforms itself into an acute emotional need to crush the opposition, which prevents us from acting rationally or thinking commercially.” For all of these reasons, he says, those in dispute do not choose to mediate first; they invariably want their day in Court.
The fact that this attitude remains commonplace is all the more surprising given the increasing success of mediation. CEDR’s Seventh Mediation Audit published in May 2016 claims an overall success rate of around 86%. Certainly, most of the mediations I have been involved in have resulted in a settlement, either on the day of the mediation itself or as part of continuing settlement discussions between the parties. However entrenched each side’s position appears to be, once they come to the table attitudes seem to change. It is easy for parties (and their lawyers) to behave badly when communicating in writing, but they generally become more reasonable when communicating face to face.
A skilled mediator can help to move parties away from a preoccupation with rights and liabilities rooted in the past. In doing so, they can assist with the identification of common aims and objectives for the future and the reopening of channels of communication. This, in turn, can lead to mutually acceptable settlement proposals. Many clients express regret at how long it has taken them to come to the table, how much time and money have been wasted, and the stress and disruption to the business and/or their personal lives that has been incurred.
Advantages of mediation
The advantages of mediation are clear. The process is cheaper, quicker and easier to navigate than litigation. It is totally voluntary, both in terms of involvement, process and outcome. Mediations are held in private and all statements made are confidential and inadmissible in Court. This gives the parties greater freedom to discuss the case openly without prejudicing their positions. Parties can use mediation to deliver a win-win solution for all involved, which can be of far greater benefit than the Court’s ability to simply determine a winner and enter judgment.
Given all of these recognised benefits, the real question is how to make mediation (and other forms of alternative dispute resolution (ADR)) more culturally normal. How can disputants be persuaded to change their mentality and increase the take up of mediation, something which is still significantly underused in the civil justice system? Currently, the Court has powers (pursuant to CPR 44) to penalise parties in costs at the end of proceedings should they have unreasonably refused to participate in a mediation. In addition, parties are already encouraged to engage in ADR during proceedings, both by the Court rules, standard Court forms and ad hoc case management by the Court.
On 4 December 2018, a working group of the Civil Justice Council (chaired by eminent mediator William Wood QC) published a report on ADR, which considered (amongst other issues) whether such encouragement should be taken further to make mediation compulsory. Whilst it did not go so far as to recommend that mandatory ADR be introduced in England and Wales, the report did propose several further measures to encourage ADR. These included:
- the possibility of a “Notice to Mediate” procedure (similar to that currently used in British Columbia), whereby a party can issue a notice to their opponent requiring mediation without the need for Court intervention;
- earlier and more stringent encouragement of ADR by the Court through its case management powers, including the possibility of costs sanctions being imposed for parties’ unreasonable conduct at the interim stage;
- the reflection in Court forms, pre-action protocols and guidance documents of an express presumption that formal ADR should be attempted at an appropriate stage before trial;
- increased availability and access to less expensive mediation models for smaller claims; and
- increased public awareness of ADR generally, including peer mediation in schools, increased law faculty and professional training, and a new website to act as a single umbrella source for information about ADR.
Work has already started to create a judicial-ADR liaison committee to monitor and advise upon the role of ADR, and it remains to be seen to what extent the other recommendations of the working group will be acted upon in the future. In the meantime, it is up to lawyers to educate their clients that, for a whole host of reasons, mediation is not a sign of weakness. It makes smart business sense and could well result in a quicker, cheaper and more positive outcome. Furthermore, if the reforms set out in the working group’s report are to be adopted, the offer and use of such techniques will soon be positively expected by the Court.
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