In England and Wales mediation has become a common feature of many types of litigation. Sir Rupert Jackson’s 2009 report on civil litigation recommended that the courts can and should in appropriate cases encourage mediation. This may be limited to simply pointing out its benefits or requiring an explanation from parties when they are not willing to meet and/or discuss mediation. However, where a party is found to have unreasonably refused to mediate, they can be penalised in costs by the court.
Mediation has been a feature of civil litigation since the Woolf Reforms of 1999 gave judges the powers to encourage the use of mediation at every stage of litigation. Traditionally the rules stopped shy of mandatory mediation and this approach was endorsed by the courts in Halsey v Milton Keynes General NHS Trust, which confirmed that no party can be forced to mediate. Despite this, parties were very strongly encouraged to mediate in the case of Burchell v Bullard (2005), where one party ignored an offer to mediate at the pre-action stage and this resulted in a significant costs penalty of £185,000.
It now seems that once again there is movement towards making mediation compulsory, as a 98-page report by the Civil Justice Council (CJC) suggested that parties in most cases should be required to engage in alternative dispute resolution (ADR). In particular it was suggested that there should be some element of compulsion, but the report stopped short of making it a condition of being able to issue a claim. A consultation based on the report by the CJC is open until December.
Compulsory attendance at mediation is already in place for family and employment disputes. It is hoped that the use of ADR will be promoted more actively and become a “culturally normal” step. There is some disagreement about when in litigation proceedings ADR should be compulsory. Within the report, the CJC commented “We think that the threat of costs sanctions at the end of the day is helpful, but that the court should be more interventionist at an earlier stage.” One argument is that ADR should be promoted around the allocation and directions stage, with the report saying, “There should be a presumption that, in most cases, if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR.”
Some members of the CJC have suggested that reforms should go further and that mediation should be a condition of being able to access the courts. Any changes have the risk of doing the exact opposite of saving time and costs, as has been observed when mandatory pre-action steps were introduced in the Italian civil system. If new requirements are imposed that are too onerous, then this may also have the effect of denying parties’ access to justice.
Interestingly, some litigators view making an offer to mediate as a sign of weakness, but the general consensus is that a more co-operative approach will benefit all (bar a small number of cases). The generally accepted approach taken by the rest of the world – the US, China, Australia and New Zealand, to name but a few legal jurisdictions – is that mandatory mediation is a positive thing. Perhaps the words in 2009 of Lord Clarke, the master of the rolls and the highest civil judge, best sum up the reason for making mediation compulsory: “Only a fool does not want to settle.” Expect a change to the Civil Procedural Rules in the near future.