By: Raqib B. Osman
The civil justice system is made to resolve disputes between two citizens, such as in areas of contract, tort and land law. However, bringing such a case to court often faces 3 main problems; cost, delay and complexity – as well as a number of other problems such as privacy concerns. Mediation is an alternative method to resolve disputes outside of court where a mediator facilitates settlement for two parties in a civil dispute.
In the UK’s civil justice system, mediation is voluntarily taken up by parties and can be done at any stage of dispute resolution. Its system is separate from the courts, and the parties themselves make the decision of settlement, unlike a judge or arbitrator who listens to submissions and decides on the award/remedy. Despite being separate from the courts, the court does have the power to refer cases to mediation.
The use of mediation in the civil justice system is clear in cases of small claims – since all small claims are automatically referred to mediation unless parties object. This shows that, while mediation is considered a form of ‘out of court’ settlement, the civil courts have a role to play in encouraging it. Mediation has also been increasingly used in family cases, since the Children and Families Act 2014 has made it compulsory for parties to attend a mandatory information and assessment meeting (MIAM) which assess the suitability of the case to be referred to mediation. It does not compel them to use mediation, it only compels them to consider it. This shows that indeed, the use of mediation in the civil justice system is a voluntary one not a compulsory one.
Mediation has also been considered for use as a preliminary stage to court proceedings – although it is not fully implemented. Lord Briggs in the Civil Court Structure Review (2016) suggests an Online Court system with 3 tiers; whereby litigants must first go through a neutral evaluation of the case (tier 1), failing which, the case is referred to online mediation (tier 2). Only if mediation is unsuccessful will parties have a hearing before a judge in an online court (tier 3).
Cost saving?
Many would consider cost to be an advantage of mediation. By comparison, court trials are bound to be expensive. Courts often require legal representation whereas mediation does not. This makes court trials subject to court fees and lawyer fees while mediation only makes the parties bear a mediator’s fee. The Court of Appeal in Burchell v Bullard expressed their shock that a case involving a net claim of £5,000 had resulted in the parties incurring £185,000 in costs. Ward LJ comments that the cost of mediation “would have been a drop in the ocean” compared to the cost spent on litigation in that case.
Lord Woolf in his study, Access to Justice (1996) found that in 40% of cases where the claim amount was less than £12,500, the cost of bringing a claim exceeded the value of the claim itself. Combined with the reduced availability of legal aid pursuant to the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO 2012), parties face heavy burdens in bringing a trial. For most of these small claims, courts would be disproportionately expensive. Mediation’s advantage is clear for small claims – its cost is proportionate to the value of the claim.
Hazel Genn (2015) in “A Measured Approach To Mediation?” argues that successful mediation will reduce costs, but unsuccessful mediation that ends up going to trial will increase the costs for the parties. This increase is estimated to be between £1,500 to £2,000. This shows that the advantage of mediation is not guaranteed, there is always a risk of increased cost. One thing we can derive from Hazel Genn’s finding is that we should not make mediation mandatory or pressure parties to take it up. Mediation’s successfulness is linked to voluntary use of it – to force parties to take up mediation means that cases with no hope to be resolved by mediation will incur higher costs.
User-friendly & adaptable
As noted in the question, mediation is said to be user-friendly due to the informality of the procedure compared to court. Court procedures have many complexities which may or may not be suitable for parties. The increase of litigants-in-person (LIPs) due to cuts to legal aid by LASPO 2012 further make the court inaccessible to litigants who are not represented by a lawyer. In the small claims track, a litigant is expected to draw up his case and make his submission of the facts to a judge on a ‘blank paper’. This will make it difficult for litigants to identify important legal issues, facts and evidence to submit.
This is attributed to the adversarial nature of a court trial – judges need evidence of the facts, judges need to listen to submissions and arguments. The same is not true for mediation. Parties are not required to find evidence to reach settlement, since the settlement is done by them and not the mediator. This is helpful for the users since they are not required to understand complex procedure or complex legal issues.
The statement in question, saying mediation is ‘adaptable’ is unfortunately doubtful. On one hand, it is true that mediation can reach an outcome that is agreeable to both parties even if it is not in accordance with their strict legal rights. Such a feature shows it can adapt to the individual circumstances of the case rather than strict adherence to the law. On the other hand, mediation does not adapt itself to handle cases which are not suitable in the first place for mediation. This includes cases which involve ‘power dynamics’ such as employer-employee disputes as well as family disputes where one partner is financially dependent on another. Mediators do not make the decision and cannot adapt the procedure to protect one party from the overbearing pressure of the other. Thus, this illustrates a disadvantage of mediation, it is not adaptable for all cases.
Private dispute resolution
Another double-edged sword is the issue of privacy. First, privacy is considered to be an advantage because it protects sensitive information. Courts, owing to their adversarial nature, require evidence. The evidence must also be presented in a way that proves one party to be ‘wrong’. As an example, in child custody disputes, one partner must prove to the court that the other is unsuitable to care for the child. This will involve sensitive, private information which may be damaging to the child and the family’s relationship.
Lady Hale in her speech “Openness and Privacy in Family Proceedings” (2018) finds that parents may want to have their ‘day in court’ but this comes at the expense of the privacy of their children. Dr Julia Brophy in “The views of children and young people regarding media access to family courts” (2009) comments that in such disputes, children may be made to give statements and testimonies about ill-treatment by one parent. She comments that these evidences are painful and embarrassing for the children. This illustrates the advantage of mediation – none of these evidences need to be presented in public hearings through mediation. Children are therefore spared the stress and pressure of a trial.
However, disputes being resolved in private rather than in court is also a disadvantage. In court, parties are expected to maintain professional conduct. They are represented by a lawyer; who can present a case without being oppressed or pressured into accepting any less. Mediation, on the other hand, loses this advantage. There is no lawyer to act as a ‘veil’ to protect the parties from being oppressed by the other. The Solicitors Family Law Association points out that where one partner is the main income earner, they can oppress the other party to accept a ‘lesser settlement’. Being private, no one knows of such oppression taking place and no one can do anything about it. An open court hearing would be much better in ensuring open justice without any concern of coercion or oppression.
Prioritizing cases
Mediation’s advantages are not just for the parties to the mediation, but also the entire civil justice system. Mediation acts as a ‘filter’ – cases without merits would be wasting the court’s time. Such an advantage of mediation would be an argument to support encouraging mediation or compelling parties to do so if it is suitable. As an example, the case of Burchell v Bullard mentioned earlier was noted by Ward LJ to have little merit, yet was pursued anyway. Had the parties been referred to mediation, the courts would not have wasted their time.
Firstly, the advantage to the parties is that they themselves can avoid delay. The parties can avoid going to such great lengths only to resolve such a straightforward case, which ended up taking such a long time. Secondly, the advantage of mediation to the system is to reduce delay for litigants in urgent cases. The Law Society Gazette UK, based on December 2019 statistics, finds that the wait times for the fast track and multi-track claims of the county court is 59.4 weeks on average[1]. For the fast track, that is a wait time of over 1 year just to have a 1 day hearing on a case that is not very complex.
Similarly, Sir James Munby (2019) comments that the family court is overloaded due to a shortfall of judges. This causes significant delay for childcare proceedings. Such a problem could be solved if more cases were referred to mediation, thus lightening the burden on the civil justice system as a whole.
To make the most out of this advantage, there should be heavy emphasis on mediation where cases have no merit, such as refusal to award costs to a party who unreasonably refused mediation. Such an approach has been taken in Halsey v Milton Keynes General NHS Trust. Unreasonable refusal to cooperate in mediation also results in a cost penalty, as held in Earl of Malmesbury v Strutt & Parker. By imposing such measures, the court can ensure that the civil justice system derives the most benefit possible from the use of mediation.
In summary, there are many advantages of mediation – but these advantages are not for all cases. Cases which are unsuitable for mediation should not be referred to mediation. However, when straightforward cases that do not require judicial attention are resolved by mediation. The benefit is not only to the parties of the dispute, but also the civil justice system as a whole.
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