31 Mar 2022
Following last year’s Call for Evidence on Dispute Resolution in England & Wales, the Ministry of Justice (MoJ) has published a summary of the responses they received. Overall, the results demonstrate a high level of support for making greater use of mediation within the justice system, and common themes regarding what may be preventing widespread engagement. Importantly, there are mixed views on whether mandatory mediation is desirable, and a range of perspectives on regulation of mediators.
Regarding the value of mediation in providing access to redress, there appears to be widespread agreement that it can produce better outcomes and is a desirable resolution mechanism for parties. Given that this consultation constituted a request for hard evidence, there still seems to be a paucity of meaningful data which would actually allow the quality of outcomes to be quantified. The Chartered Institute of Arbitrators’ (CIArb) response sought to overcome this problem through a comparative analysis of different dispute resolution models around the world, identifying lessons which gave some indication of what makes a framework of mediation effective. However, there is clearly still scope for further research to hone in on why mediation can be advantageous.
This did not prevent respondents identifying a clear and coherent set of benefits which mediation can offer. Specifically, mediation was praised for enabling a more flexible range of outcomes than more adjudicative methods, and for allowing parties to retain a sense of ownership and control over the process. It was also viewed as an option that allows for the preservation of commercial relationships (which can be vital when the parties need to maintain interactions over a long period).
The Call for Evidence was issued last year against a backdrop of renewed interest in mandatory mediation, particularly in light of the Civil Justice Council (CJC) Report which found that compulsory mediation would be lawful and, in certain circumstances, desirable. Unsurprisingly, this question elicits a range of different opinions. The MoJ summary shows that in general, mediators, mediation providers, insurers and public service sector bodies were supportive of some form of compulsion, whilst lawyers, academics and advisers tended to be opposed. Supporters focussed on some form of mandatory process as being the only way to enforce widespread change and highlighted that it may remove the perception of weakness that some parties have. Opponents felt that compulsion could detract from the sense of control mediation can provide and would risk becoming a bureaucratic ‘tick-box’ exercise.
CIArb understands the nuances of this debate and the strong arguments both for and against compulsion. On balance, our view is that policymakers should have the option of introducing mandatory mediation within the justice system as a way of increasing take up and producing better outcomes. However, we also recognise that it is not a panacea, and that the focus needs to always be on what makes mediation effective, from the stages at which parties are directed towards mediation to the skills base of those who are administering the system on the ground. Our response focussed on the experience of different systems around the world to allow for some of these points to be identified.
Standards and Regulation
Closely related to the question of compulsion was the issue of how to uphold standards in the mediation sector, and whether this requires some form of external regulation. The MoJ summary refers to CIArb amongst several membership bodies as providers of self-regulation in the current system, highlighting the provision of complaints procedures, codes of practice, setting and reviewing professional standards and training and accreditation. Whilst some respondents have called for the mandatory regulation of mediation practitioners to improve standards, the MoJ were clear that they were “provided with no evidence of widespread professional misconduct”.
CIArb’s submission was clear that any policy proposal for regulation needs to be rooted in the question of exactly what it should seek to protect the public from – in short, professional incompetence and unethical behaviour. It also made clear that any system of regulation must reflect the wide-ranging and diverse nature of dispute resolution, accounting for differences in the levels of knowledge and experience required to operate across different fields and types of dispute resolution services. For this reason, we are not in favour of a monolithic system of regulation under which all providers would have to be a member of a single organisation. Instead, we identified the requirement for practitioners to be a member of a relevant membership body under the aegis of a ‘supra-regulator’ upholding consistent minimum standards as an alternative model (analogous to the system for legal services which encompasses 11 different regulatory bodies).
The government is now reviewing the summary of responses and will be using the findings of the consultation to identify how to use dispute resolution processes more effectively within the justice system. CIArb will continue to work closely with the MoJ as it develops policy proposals in this field, and will seek to ensure that the benefits of mediation can be made as widely available as possible.
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