Mandatory Mediation – Everything you Need to Know

Introduction

Over the last 30 years, since its early practice in 1989, there has been steady growth in the total number of cases using mediation in the United Kingdom.  However, as a percentage of the resolution of all civil claims, resolution via mediation is still not particularly high.

Whilst there were 247,000 contested Civil law cases[1] in England and Wales in 2020[2], it is estimated that there were 16,500 commercial mediations in the same period[3].  Although this figure does not include mediations conducted through schemes (for example involving consumer schemes or the NHS,) that means based on these statistics, mediation is likely the resolution method in around 7% of civil cases.

As we emerge from COVID-19, however, the world has changed dramatically, with many social trends having been turbo-boosted. We face a number of new challenges, not least in the civil justice realm and the provision of state resolution of disputes through the courts.

This has led to stakeholders in the UK Civil Justice system looking more closely at the use of mandating mediation with the aim to increase dramatically the uptake of the process to resolve cases before court proceedings begin.  This would thereby relieve pressure and reduce costs within the civil justice system.

It is important at the outset to make it clear that mandatory mediation means a requirement for parties to attempt mediation.  It does not mean compulsion to stay in a mediation process if disputants are unhappy; do not want to settle or cannot find terms upon which they can agree. This is an important point that I will return to later in this article.

This idea of mandating mediation is not new of course and has been floated from time to time in the UK and internationally. In the UK, when it has been raised as an option previously, both the mediation and legal communities have been resistant, but for differing reasons.

The mediation community has argued that to mandate the use of mediation would breach a core tenet of mediation dogma- that mediation is a voluntary process and that a party’s right to self-determination should be respected. The argument used against mandatory mediation by the legal community is different. Instead, it is couched in terms of ‘protecting’ access to justice, by which they mean, a citizen’s right to take a case to ligation through to trial and have a decision made by a judge.

It is CEDR’s view that both these concepts/objections – ‘Voluntariness’ and ‘Access to Justice’ –  have been construed narrowly to suit the argument being made. If these concepts are explored in more detail, they no longer become blocks to mandatory mediation but considerations in supporting it.

If this is the case, it is CEDR’s view that mandatory mediation is an idea whose time has come.  This is a view which is supported by the recent Civil Justice Council (CJC) paper[4] in 2021 holding it to be both lawful and desirable, and is also supported by the Master of the Rolls, Sir Geoffrey Vos when he said commenting on the CJC’s report:

 “As I have said before, ADR should no longer be viewed as “alternative” but as an integral part of the dispute resolution process; that process should focus on “resolution” rather than “dispute”.[5]

This also now appears to be the view of the UK government who, on 26 July 2022, announced their intention to implement mandatory mediation in all contested claims under £10,000 in the county court in England and Wales, and take further steps in developing regulations in order to eventually extend the requirement to mediate to all country courts.[6]

Accordingly, the Civil Justice system seems to be embracing the opportunity widespread resolution of civil claims could bring to meet some of the exceptional challenges currently being faced by society and in particular civil justice.

This article will first address why we, at CEDR, believe the time has come to mandate the use of mediation. We will then explore and counter the objections raised above to mandating mediation.

Finally, the article will explore some of the issues and considerations that we will need to address as a community of mediation, civil justice and legal professionals if mandatory mediation is to be introduced successfully.

Section 1: The case for Mandatory Mediation

1. Mandatory Mediation – An idea whose time has come

In its submission to the Ministry of Justice on the call for evidence on mandatory mediation, CEDR as an organisation supported its introduction.  In doing so, we drew on our 30 years of collective experience of mediating and running court-based systems in the UK as well as having worked as consultants throughout this period, assisting other countries to develop mediation within their own court systems.

Indeed, the writer of this article refers back to his early years of mediating in New Zealand as a full-time mediator for the NZ Tenancy Tribunal, working with landlords and tenants. This was a service dealing with litigants in person on both sides with no lawyers involved.

This is mentioned as it is an example of a de facto mandatory scheme.   Last year over 20,000 cases were mediated through the scheme with a 90% settlement rate.   This meant that the Tribunal was not overburdened, the disputants had quick and inexpensive access to justice and cases were resolved on average in a month or two, allowing parties to move on with their lives.

These sorts of statistics are reflected in other mandatory mediation schemes around the world.

The largest study of the Ontario Mandatory Mediation Program(OMMP) in 2001 reviewed over 23,000 cases (“The Hann Report”) and demonstrated a 40% settlement rate, and found that there were reductions in the time taken to dispose of cases, a high proportion of cases were completely settled and there was a decrease in costs to litigants.[7]

More recently, in 2019, the Ontario Bar Association surveyed their members with regards to their views of the OMMP and whether it should be expanded to the rest of the province. In the June/July survey, approximately 90% of their respondents were in favour of expanding mandatory mediation throughout Ontario and it is likely that the settlement statistics are higher than those of 2001.[8]

Therefore, these examples lead to the first point this article wishes to make about mandatory mediation – it works!

It works in getting meaningful numbers of cases out of the courts and allowing parties to resolve their own disputes in an expeditious and cost-effective way.

Now the common counter refrain to this is that there are many other ways to encourage parties into mediation.  Whilst this is true, in our experience, in terms of getting meaningful and wholesale take up of mediation, none of them work as well as mandatory mediation.

As consultants in the development of mediation around the world, CEDR has seen the effect of various approaches and tactics to encourage mediation take up.

Let’s look at some other approaches:

• Nudge tactics – such as awareness raising, education and the use of ADR champions. These approaches can get things started but take up is never very high or very fast and targeting the general population is to difficult to make a meaningful impact.

• Carrot and stick measures- Civil procedure rules changes, costs sanctions, pre-action protocols etc – these are more effective and have been used effectively here in England and Wales. For example, the Civil Procedure Rule changes in 1999 which made a big difference in referrals to mediation in commercial cases. In 2000, the year following the introduction of the rules, CEDR saw an increase of 141% of commercial cases mediated and the numbers referred to mediation more than doubled across the industry. ^[9]

However, even after 30 years of mediation practice and considerable progress in the UK in the use of mediation facilitated by many measures mentioned above, mediations still remain a small percentage compared to the number of cases in the courts and those that could be resolved via mediation.

For those experienced in working with conflict, this is not surprising.

As mediators we know first-hand that human beings by and large like to avoid conflict, and that we have been socialised to hand over disputes to others to resolve for us – namely the civil justice system. In this context, the state only provides one option for resolution – the adversarial litigation system, which we know from years of experience, disputant feedback and many studies, is slow, expensive, and often does not provide satisfactory outcomes for disputants (even winning ones).

Given this socialisation of conflict avoidance and historic use of litigation, stronger approaches are needed to get wholesale uptake of mediation so as to make a meaningful difference in the number of cases being resolved via mediation and therefore removed from the court docket. For this reason, CEDR believes the use of mandatory mediation is necessary to assist this sea change of approach.

Finally, the above analysis is instructive in what sort of broad model of mandatory mediation should be adopted. Some have suggested that we should adopt an Automatic Referral to Mediation (ARM) approach.  Indeed this is the model suggested by the Ministry of Justice in the proposal to mandate mediation through the small claim mediation service (SCMS).

However, this has been tried before in the Automatic Referral to Mediation pilot scheme run in 2004/2005, and was not successful. 100 cases were selected at random to be referred to mediation, with only 22% having a mediation appointment and 81% having one party object to mediation.  The major problem with this previous approach was that there were too many exceptions making it easy for parties to avoid mediation.

There was also no real enforcement with no penalties applied for non-compliance.  An ARM approach may be more effective, if referral is compulsory in all but the most exceptional cases, and compliance is rigorously enforced with non-compliance being sanctioned by the courts.

Another option is to follow family mediation and introduce Mandatory Mediation Information and Assessment Meetings (MIAM’s) whereby the parties are required to attend these sessions, and only proceed to substantive mediation if they agree at or following the MIAM.

While this approach is more effective than the ARM with opt-out approach, data shows that it still does not result in widespread take up of mediation. In a study by the Ministry of Justice on MIAMs in family disputes, only 22% of cases resulted in mediation, while in 78% of cases, mediation did not take place.[10] The latest quarterly legal aid statistics show a decrease in MIAMS of 17% between October and December 2021 compared to the previous year and have seen low levels of uptake.[11]

The statistics from these two different programmes show that these types of ‘permissive’ approaches are not sufficient to overcome the socialisation issues set out above and a more truly compulsory approach (parties must attend mediation) is necessary.

2. Addressing the Objections – Voluntariness and Access to Justice

Having now made the positive case for mandatory mediation, at this point it is important to address the two main objections often used against mandatory mediation. This is not to say there are no other issues that need to be addressed if mandatory mediation is to be implemented.

However, secondary issues are more about the ‘how’, rather than fundamental objections to the concept of mandating mediation. These will be discussed later in this article.

A. Mandatory Mediation removes the voluntary nature of mediation

Turning to the first major objection to the mandating of mediation, which more often than not comes from sectors of the mediation community itself, is that mandating mediation removes the voluntary nature of mediation.

To explore this fully, we need to first understand the historical context of voluntariness as a core principle of mediation.

The mediation process has been developed historically as an alternative to the litigation process (hence ‘ADR’) with all its incumbent downsides including compulsion. Importantly the concept of parties taking back control of the dispute from lawyers and the courts and retaining maximum self-determination over (a) whether they want to mediate; (b) if they want to settle once in mediation; and (c) what the specific terms of the settlement might be, have for over 40 years been central to the principle of the voluntary nature of mediation.

However, times have changed and mediation’s principles must adapt with society as it develops.

We now have over 40 years of mediation practice which shows clearly that once parties get into mediation, a high percentage of cases (60% +, depending on the context) actually settle.

In addition, the CPR rule allowing for referral and cost sanctions for unreasonable refusal to mediate, and the subsequent pre-action protocols, while not going as far as mandating entry into mediation, have already begun to loosen the voluntary nature of participation.

Further, as recent commentary by Sir Geoffrey Vos MR. amongst others outlines, in changing the terminology from ADR to NDR (Negotiated Dispute Resolution) mediation is no longer promoted uniquely as an alternative to litigation but rather as part of the toolkit that should be made available to disputants in an effort to assist them to resolve their disputes.

Given the above, it is time to adapt our thinking about self-determination and voluntariness and accept that for the greater good of effective dispute resolution of disputes in society, it is legitimate that disputants be mandated to attend mediation.

However, to be clear this would still leave strands (b) and (c) of the principles of voluntariness and self-determination firmly in place.   No mandatory mediation would remove the party’s right to decide if they want to settle, and on what terms to do so, once they are in the mediation process. In this sense, self-determination and voluntariness of the mediation process are retained.

B. The ‘access to the courts framed as access to justice’ objection

We will explore this objection mainly from the perspective of the England and Wales jurisdiction, and using the Halsey v Milton Keynes (2004] 1 WLR 3002 case as our starting point. However, variations of the same argument put forward by the court in this case, have been made around the world, either as part of an alleged breach of a constitutional right to access to the court, or some other legal instrument conferring such a right.

In Halsey, Dyson LJ in his judgment addressed the question of whether mandating mediation could be legal. His answer was a clear “No”. He said:

“It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court…”

As can be seen from the last sentence of this quotation, the reason that mandatory mediation was found to be unlawful was framed as an unreasonable obstruction in the disputant’s right of access to the court, as set out in Article 6 of The European Convention on Human Rights (ECHR). Um, an

Since Halsey, which was decided over 15 years ago, practice has developed and legal opinion has evolved.  This article will not set out the full case law in this respect as this can be found in the CJC paper.[12] However, the current view, albeit still with many detractors, is nicely summarised by Asplin LJ in the CJC paper on mandatory mediation:

“…… any form of ADR which is not disproportionately onerous and does not foreclose the parties’ effective access to the court will be compatible with the parties’ Article 6 rights. If there is no obligation on the parties to settle and they remain free to choose between settlement and continuing the litigation then there is not…….. “an unacceptable constraint” on the right of access to the court.”[13]

Therefore, the key distinction now being made is, that far from being an unreasonable restraint on access to the court, if done appropriately, mandatory mediation can facilitate parties’ settlement of a dispute, which is ultimately what the parties want.

All too often the right of ‘access to court’ has been used to block attempts to assist the parties to settle their disputes.  Further, this argument is then often reframed as ensuring parties have ‘access to justice’.   However, this construction of the term ‘access to justice’ to mean only ‘access to the courts’ is far too narrow.

Rather a more expansive view of the term would see mandatory mediation as a key part of access to justice. As Professor Richard Moorhead put it:

“Access to justice means being “treated fairly according to the law and if you are not treated fairly being able to get appropriate redress. That doesn’t just mean access to lawyers and courts. It means access to ombudsmen, advice agencies….”[14]

In other words, it is lawyers who view access to justice as exclusively referring to the right to access courts and trial.  Disputants, on the other hand, while wanting their right to ask a court to make a determination, if necessary, really perceive getting justice more holistically.

For them what is important is getting their dispute resolved in a cost-effective and fair way, ensuring they have the opportunity to be heard, and that the resolution meets their commercial and personal needs.

This pretty much sums up what mediation can offer to the parties, and the small procedural step of mandating mediation, is a way of ensuring that parties have access to a resolution process that can meet their commercial, personal and legal needs without unreasonably impeding the parties’ right to proceed to court proceedings should they so desire, after attempting mediation.

C. Increase in cost and no guarantee of success

Finally, opponents of mandatory mediation often object to it on the basis of it adding an extra procedural step, which if not successful will increase time and cost.

While it is true that this is an extra procedural step for cases that do not settle, it must be balanced by the considerable reduction in steps required for those cases that do settle.

It can also be justified on public policy grounds in furtherance of the civil procedure rules overriding objective of  “enabling the court to deal with cases justly and at proportionate cost”.[15]

In relation to additional cost, it should be noted that the small claim mediation service which is proposed by the government to be made mandatory, is funded completely by the state at no cost to the parties, thereby costing unsuccessful parties nothing for undertaking mediation.

Even when parties are required to pay the cost of the mediation, proportionately it is an extremely small percentage of the overall cost of the process, and is well and truly offset by the costs saved by the cases that do settle.

Even in unsuccessful cases, mediation often helps to narrow the issues in dispute enabling settlement sometimes after the mediation, thereby saving costs, or at least a focusing of the legal action.   Therefore the imposition of this additional step, on balance must, in the words of Asplin LJ, be viewed as not being  “disproportionately onerous” on the parties and thus not “an unacceptable constraint on the right of access to the court.”.[16]

Section 2: How to make Mandatory Mediation a success

Having made the case for mandatory mediation in big picture terms, this article will now address a number of issues which will need to be worked through in order to make its introduction a success.

None of the issues about to be discussed are insurmountable.

They just need careful process design, like any dispute resolution system that CEDR has designed around the world.   In undertaking, this discussion reference will be made in broad terms to the recently announced proposals of the UK Ministry of Justice. More detailed views will be given to the Ministry as part of its consultation process.

1. Protection of disputants

If mediation is to become a mandatory part of the state-sponsored civil justice system, with the courts requiring parties to have attempted mediation prior to proceeding to trial, then the state has a duty to ensure that those providing the service meet some practice standards and that there is a robust complaint process available to disputants who are dissatisfied with the service they are provided in any given mediation. It is in this context that the first issue of the appropriate approach to regulation of the mediation market must be explored.

The second area which must be explored in protecting disputants in mandatory mediation is how parties, particularly unrepresented ones, are adequately advised prior to the mediation process and supported during the mediation itself.

Let’s explore both in turn.

A. Regulation of the Mediation Profession

Concerns have been rightly expressed about mediation being essentially an unregulated market so in the context of mandatory mediation how can the courts ensure that standards are in place and enforced?

Before turning to address this question, it is necessary to first to be clear about the dangers of comparing apples with pears when comparing the mediation profession to say regulation of lawyers and barristers.

Secondly, it is important to understand what is currently in place for regulation of the mediation profession. With regard to regulatory comparators, often when the regulation of mediation is discussed the comparison is drawn with the regulation of lawyers. However, this is not an appropriate comparison to draw.

Rather, in considering the correct level of regulation for any profession, it is appropriate to ask- what is the actual harm that could be caused that we are trying to protect the users of the services from?

Lawyers provide advice upon which parties to a dispute act and rely and therefore the harm that can be caused by incorrect or negligent advice can be severe.

In comparison, mediators do not advise and only manage the process of the parties’ decision-making about whether they want to settle and the terms of that settlement. Therefore, the actual harm they can do from poor practice is minimal.

This is borne out by the fact that in 24 years CEDR is aware of only one case in Australia of a mediator being sued for negligence. If there was to be a harm by the mediator, it would most likely come about due to a breach of confidentiality, or the stepping out of the role of mediator and being perceived to give advice, which a disputant relies on to their detriment.

Even here the simple requirement that mediators have professional negligence insurance (which most currently do) means that should an action be taken by a disputant which has some merit, it may be settled by the insurer, providing the party with financial compensation for the breach.

Turning now to outline the current system of regulation for the profession.

Currently, no compulsory regulation regime operates for mediators in the United Kingdom.  Therefore it is technically possible in the current landscape for anyone to offer their services as “a mediator” to parties, even if they are not trained, or if they are, not to be adequately trained, or have insufficient practical experience to mediate cases.

Further disputants working with such an unregulated “mediator” would have no recourse in terms of complaining to an industry body if they are dissatisfied with their work.

In practice, however, it is not quite the wild west in terms of standards and regulation of the mediation field and the experience outlined above would be unusual.

After 30 years of practice, a number of reputable mediation training organisations and providers are in the market, and lawyers advising their clients in respect of appointing mediators know which qualifications to look for.

Further in 2003, the Civil Mediation Council (CMC) was established by service providers and individual mediators to provide a self-regulatory scheme for the mediation profession.  This regulatory scheme is extensive and provides for the standards and registration of training providers and mediation service providers as well as for individual mediators and there is an independent complaints process, against those providers and mediators who are members of the CMC[17]. CEDR and many other reputable providers are registered within the CMC, and their standards and regulatory framework is looked at internationally as good practice.

So, if the CMC has the self-regulatory process in place, the question becomes what is missing, or would need to be adjusted, if mandatory mediation were introduced?

B. Registration with a Regulatory Body

In CEDR’s view, there are two things which need to be addressed.  If mediators wish to provide mediation under a mandatory scheme they should be required to be registered with the CMC.  This would ensure they fall within a regulatory framework and complaint process and protect disputants from poor practice and service provision.

Independent Benchmarking

Secondly, to satisfy itself that the regulatory regime in place is fit for purpose, prior to the implementation of mandatory mediation, some form of independent benchmarking could be considered, in order to satisfy all stakeholders that the regulatory regime is fit for purpose.

This does not need to be a wholesale review, or as is suggested in the recent Ministry of Justice consultation paper, the creation of a ‘national mediation standard’, as this would be going too far and would be too restrictive in nature.

We know that after 30 years of practice, the UK mediation standards are amongst the highest in the world and we do not need to reinvent the wheel here. However, some alignment with the independent regulatory framework methodology would be useful.

We would argue it should be done in a collaborative way with all stakeholders of the profession, rather than led by an outside ‘expert’ in abstract regulatory frameworks. If this process is carried out it will give the government, courts and public, confidence that the CMC regulatory framework is robust and fit for purpose under a mandatory regime.

Finally, as to the form of regulation, there are gradations available.  These range from the currently optional self-regulatory model to self-regulation with a compulsion to be registered if operating in a mandatory mediation scheme, to a full statute-based regulatory authority.

From our work in many other countries, we have seen the very real negative aspect of going down the full statutory regulation route.

Commonly, a body may be given regulatory powers under statute but no resources to fund its functions. This leads to an inability of the regulator to properly carry out its functions – approve training bodies, register mediators, handle complaints. This results in the whole profession grinding to a halt. It also can result in an overly rigid and inflexible system, which is inward focusing and not able to respond to the needs of clients in an ever-changing market.

For this reason and given that via the CMC we have a functioning body which provides an effective regulatory role for the profession, CEDR supports the continuation of the self-regulatory approach, with independent benchmarked standards, and a requirement for any mediator who wished to mediate under a mandatory scheme to be registered with the CMC.

Protecting Unrepresented Parties

Given the gradual reduction in civil legal aid, the courts have seen an explosion of cases involving unrepresented parties. The most recent statistics available (published in 2019) show that in the year 2017-2018, 29% of parties in civil cases in England and Wales were unrepresented. [18]

It is therefore going to be very common in a mandatory mediation for one or both parties to be unrepresented.

Therefore, in implementing mandatory mediation, it is crucial that the system is able to adequately inform Litigants in Person (LiPs) prior to mediation about their legal rights and how the mediation process works and their role within it.

Secondly, while in mediation a LiP must feel able to properly engage during the process and reach a decision on settlement, without feeling unduly pressured or under duress.

In terms of ensuring unrepresented parties are sufficiently informed about the mediation process, there is already a plethora of information – written, video etc about the mediation process. Once a mandatory scheme is finalised, I am confident the profession, perhaps under the auspices of the CMC, can come together to ensure there is sufficient informational material to inform LiPs about the mediation process.

Consideration could also be given to an information helpline to assist with this.

Finally, it should also be noted that it is a fundamental part of a mediator’s role prior to, or at the start of, the process to ensure that parties understand the process and are comfortable to proceed.

In respect of obtaining adequate legal advice, we would suggest this is not an issue just about mandatory mediation, but a wider issue about the cost of legal advice in legal proceedings for disputants, particularly at the lower-case value levels.

Accordingly, this should not be seen as a bar to the introduction of mandatory mediation. However, it perhaps could be seen as an opportunity to develop and fund a service to give free access to basic legal advice for LiPs entering the state-sponsored dispute resolution system.

Finally, in respect of LiPs being able to fully engage in the mediation process and decide on settlement, while being protected from undue influence and duress, it first should be noted that mediators regularly mediate with LiPs and there are specific process measures that can be put in place to ensure enhanced protection for them.  Mediators are also able to redress power imbalances and ensure that parties do not feel pressured into making decisions on settlement.

However, perhaps if a mediator is going to mediate in a mandatory mediation context consideration could be given to requiring increased training for mediators on working with LIP’s and issues around vulnerability etc. This could be provided by training providers as part of a CPD offering promoted under the auspices of the CMC.

2. What cases and when in the court process

One question asked often when discussing mandatory mediation is what cases within the courts system would mandatory mediation apply to?

To start, it is possible to make some general observations.

Firstly, there is a tendency when discussing the use of mediation, for stakeholders to look for exceptions and begin to exclude all sorts of cases as ‘unsuitable for mediation’.   CEDR has lost count of the times we have been told certain classes of cases are not able to be mediated only for us to know, that indeed they are routinely mediated.

A good example of this is cases where there are allegations of fraud. Many in the legal community have said over the years that these cannot possibly be mediated.  However, the reality is that cases with allegations of fraud are commonly mediated and settled.

Starting with the assumption that there are cases that should be excluded and looking for them is the wrong approach. Exceptions should be just that – exceptions, and they should not be so broad as to become the rule.

We see this approach of looking for exceptions harming the previously mentioned ARMS and MIAMs schemes.

The categories for exception were so broad as to effectively negate the mandate to mediate.  It is also completely unnecessary, and the approach should be to start in completely the opposite way – to say in the civil commercial sphere that prima facie all cases are able to be mediated, and then create very narrow exceptions to this rule, which should be approved on a case by case basis.

3. Next is how ambitious should we be in mandating mediation?

Is it going to be applied to all cases at all levels of the court system, or are we going to select specific types of cases?  For example, perhaps it is best to focus on where the most need is in terms of either the type of cases that should settle; which would provide disputants with the greatest access to speedy and cost-effective resolution; or, which cases are causing pressure on the court system; or perhaps [a collection of all these factors.

We now know that to begin with, in England and Wales, the model will be mandated mediation in small claims in the County Court, while leaving the more high-value, commercial cases to operate as they currently do with voluntary referral to mediation.

It may be useful, however, for the courts to have enhanced powers to order mediation on a case-by-case basis with this latter group, or in time for more cases to come under the mandatory approach.

Whatever route is chosen, CEDR is firmly of the view that it should be conducted on a pilot basis, delivered by experienced providers with proper monitoring and evaluation to assist in measuring effectiveness. Once this is completed and learning has enabled a refinement of the process, it can then be rolled out more widely across the civil justice system.

This is the model that has been adopted in the majority of the schemes that CEDR administered over the years. Most notably, this model was recently used with considerable success by the NHS Resolution Clinical Negligence Mediation scheme, where two providers were selected to deliver the scheme as a pilot for a period of two years, prior to a review, adjustment and continuation of the scheme as a permanent model.

As to when in the court process, mandatory mediation will be deployed, this will depend very much on what type of cases are selected for such a programme.   However, in general terms the earlier in the cycle of a dispute the better from the perspective of the disputants as it reduces unnecessary legal costs and stress, and allows them to resolve the dispute faster. Increasing use of mediation provisions in pre-action protocols would allow for some classes of cases to be mediated pre-action. One example of an effective pre-action protocol driving pre-action mediation is the Professional Negligence protocol.[19]

In most mandatory mediation settings, particularly for cases at the lower claim levels, the mandatory mediation referral happens as soon as possible after, if not prior to, the issue of proceedings. This does not preclude a referral at other times of the court process, and all ‘exit’ opportunities should be open to the parties.

4. Providing a high-quality service

Having an effective regulatory framework is not sufficient in and of itself to ensure that disputants who are mandated to mediate will receive a mediation in an efficient and timely manner.

Equally important is to ensure the provision of mandatory mediation is managed professionally and to the highest quality standards. Under this heading there are three aspects to consider- (a) service provision, (b) supply of mediators and funding; and (c) use of technology. 

You need experienced service providers to run these services

No matter the level of cases, CEDR would encourage mandatory mediation services are undertaken by experienced service providers who have the experience, process and systems to manage a high level of case volumes efficiently.

This will enable parties to have their mediation set up and resolved professionally and expeditiously, but also to provide the level of support needed by parties, particularly for those unfamiliar with the process.

In this respect, there is no need to reinvent the wheel.

The good news after 30 years of mediation practice in the UK is that these organisations already exist. Also, many service providers like CEDR have experience of managing dispute resolution cases at scale.

For example, in the consumer arena, CEDR manages and resolves over 30,000 cases per annum made by customers against companies, as well as managing the NHS Resolution Clinical Negligence Mediation Service, the Central London County Court, High Court and Court of Appeal mediation services. The process and system for mandatory mediation will be very similar, and therefore can be easily scaled.

Other service provision models exist. For example, court-employed mediators, who mediate full time, and are funded by the state is one possibility and is the model currently offered by the Small Claims Mediation Service (SCMS) and is now proposed to be expanded and made mandatory. The opening up to all claims of this type will require an extensive number of employed mediators, in order to fulfil the need, and may take a while to get to full capacity.

In these circumstances, a hybrid model could be considered, with staff mediators working in collaboration with service providers. Here a core group of employed mediators would provide base levels of delivery as well as setting standards for mediation practice, while interfacing with reputable providers to provide mediators into the scheme, in order to make use of service providers’ current mediator networks and systems, and provide trained mediators with mediation income while making the service easily scalable.

In essence, the dispute resolution service provision market already exists, so we would argue, it should be utilised to professionally deliver mandatory mediation to disputants. 

Use of technology

Prior to the pandemic, there was practically no online mediation.

During the Pandemic the majority of mediations shifted online, with no drop in settlement rates, and no drop in satisfaction with the process from the parties.

As we have emerged from the pandemic, there is still a considerable number of cases being conducted online, and this is a trend we very much expect to see continue. It is CEDR’s view that online mediation will play an important role in any roll-out of mandatory mediation as providing mediation sessions online is more efficient and cost-effective for the parties, mediator and service providers.

This is of course consistent with the emerging approach of the court system itself with, for example, the development of online dispute resolution portals.

In addition, the newly formed Online Procedure Rules Committee (OPRC), set up under The Judicial Review and Courts Act 2022, will facilitate the process by which external service providers, such as those who will provide mediation services for disputants, will effectively interface with the court’s digital system, in order to ensure a seamless experience to the public. [20]

Supply of mediators

One question raised with CEDR by members of the judiciary and other stakeholders when discussing the possibility of mandatory mediation is, are there enough mediators to mediate the number of cases if it is made mandatory?

As one of the major trainers and service providers in the UK, CEDR knows that there is a large supply of trained mediators who want work. We know other service providers say the same.

However, it may be the case that trained mediators will need some time to comply with any regulatory registration requirement in order to become available to mediate under a mandatory scheme.  This, however, is merely an initial timing issue.

The other opportunity mandatory mediation will open up is for mediators to work full-time as mediators. Currently only a very small percentage of mediators are in a position to mediate full-time.

However, with mandatory mediation opening up, and with models likely to include time-limited online mediation as well as full-day in-person cases, and every shade in between, there will be opportunities for mediators who want to practice mediation full-time and earn a reasonable living doing so, to be able make this a viable career, thereby boosting the supply of quality mediators available to disputants.  This will also develop diversity within the profession and provide opportunities for new talent to have a pathway to develop their skills and their reputation.

In summary- CEDR are sure if there are cases there will be qualified mediators to mediate them. 

The system would need to be adequately funded

The final point to be made under this head of providing a quality service, which should go without saying but does need to be made explicit, is that any mandatory mediation system would need to be adequately funded.

Mediators are professionals providing a valuable and highly skilled service to disputants and they should be adequately remunerated for providing this service, as should the service providers who would manage such services.

Such a large-scale use of mediation cannot and should not be sustained on a pro-bono basis.

It is assumed that an extension of mandatory mediation scheme in the county courts beyond small claims, would be funded by the disputants themselves, and the fee structure would depend very much on the type and value of case.

Again, England and Wales already have a well-established mediation market with fee levels to cater for all cases from small claims to multi-billion-pound claims.

It is anticipated that in some of the smaller value claims, there will need to be some consensus on the rates, particularly if more than one provider is providing the mediation service.  However, at the higher fee and complex case levels, with lawyers representing parties, the current market rate system of fees works well and should not need to be adjusted.

One thing is certain, whatever the fee levels for the mediations and service provision, they will still be substantially cheaper than going to trial for both disputants and the state.

Conclusion

Given the current issues faced by society as a whole, CEDR believes that a step change use in mediation could make a valuable contribution to resolving many more disputes currently before the courts in England and Wales.

Part of the way we can make this step change is by using a mandatory mediation approach to ensure parties enter the process and actively consider settlement, with the help of an experienced dispute resolution professional. The parties would still retain the right to decide if they ultimately want to settle and if so, on what terms.

The 30 years of experience of the practice of mediation in England and Wales, with trained mediators and experienced service providers and an effective regulatory system with good standards, means we are well placed to take this next step, and CEDR will work with the government, judiciary, the court service and all stakeholders in the profession to ensure that mediation services provided to disputants continues to be of the highest standard.

[1] 1.3 Million claims were brought in this period, but only 19% of claims are defended (and therefore necessitate a court hearing).  This figure does not include family law cases, employment tribunal cases or criminal cases.

[2] Georgina Sturge, Court Statistics for England and Wales, House of Commons Library, 23 December 2021, https://researchbriefings.files.parliament.uk/documents/CBP-8372/CBP-8372.pdf

[3] The Ninth CEDR Mediation Audit (2021), 6-7 <https://www.cedr.com/ninth-mediation-audit-2021/> accessed 22 July 2022

[4] https://www.judiciary.uk/wp-content/uploads/2021/07/Civil-Justice-Council-Compulsory-ADR-report-1.pdf

[5] https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/

[6] https://www.gov.uk/government/news/government-reveals-plans-to-divert-thousands-of-civil-legal-disputes-away-from-court

[7] Hann, Robert G., and Carl Baar. Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1) Final Report – The First 23 Months (Queen’s Printer, March 2001) 2

[8] Jennifer L. Egsgard MANDATORY MEDIATION IN ONTARIO: TAKING STOCK AFTER 20 YEARS (July 16, 2020), Ontario Bar Association <https://www.oba.org/Sections/Alternative-Dispute-Resolution/Articles/Articles-2020/July-2020/Mandatory-Mediation-in-Ontario-Taking-Stock-After#_ftn21> accessed on 22 July 2022

[9] Cases referred to mediation more than double since Woolf (The Law Society Gazette, 16 June 2000)

<https://www.lawgazette.co.uk/news/cases-referred-to-mediation-more-than-double-since-woolf/29773.article> accessed on 22 July 2022

[10] Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes Quantitative research findings, Ministry of Justice 2015.

[11] https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-october-to-december-2021/legal-aid-statistics-england-and-wales-bulletin-oct-to-dec-2021

[12] A detailed review of the case law can be found in the CJC Report

[13] Civil Justice Council Report on Compulsory Mediation, para. 58

[14] https://www.theguardian.com/law/2011/oct/06/access-to-justice-legal-aid-cuts#:~:text=Access%20to%20justice%20means%20being,means%20public%20authorities%20behaving%20properly.

[15] Civil Procedure Rule 1.1

[16] Supra 13

[17]https://civilmediation.org/complaints/#:~:text=All%20complaints%20must%20be%20in,to%20be%20completed%20and%20returned

[18] Answer from Lord Chief Justice to Parliament Question on Litigants in Person statistics, 25 January 2019, https://www.parliament.uk/globalassets/documents/commons-committees/Justice/correspondence/250119-LCJ-statistics-litigants-in-person.pdf

[19] https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_neg#Alternative

[20]  For a good summary of development in online dispute resolution and technology in the courts see the speech of Birss LJ speech to the online Dispute Resolution Forum, May 2002. https://www.judiciary.uk/announcements/speech-by-lord-justice-colin-birss-online-dispute-resolution-forum/