06 Aug 2019
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:
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:
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?
In this short piece, I have tried to give a flavour of things to come and what needs to be done.
Tony N Guise