I like to think I am reasonably self-aware. One of the things I am conscious of is that, perhaps more than I’d like, those around me (particularly young people) have quite clear, well-informed, views about things, whereas I feel more neutral or perhaps under-informed while at the same time thinking that I should demonstrate more of their perspicacity and coherence of thought.
I am a property disputes solicitor. I am quite experienced. I am also a mediator and I am quite experienced at that too. Others are sometimes kind enough to suggest I am quite good at both areas of practice.
With both hats on (litigator and mediator), I feel I should have a clearer position about whether or not mediation should be compulsory in the arena of civil litigation. In truth, I have been firmly seated on the fence, undecided about the point.
Why this reflection now?
In a speech given on 8 June 2022, the Master of the Rolls, Sir Geoffrey Vos, discussed his vision and hopes for a system of “digital justice”, being an online smart system dedicated to the real issues that divide parties to a dispute and the resolution of those issues at the earliest stage in the dispute (Speech by the Master of the Rolls: CiARB Roebuck lecture | Courts and Tribunals Judiciary). His reasoning for such a system: “…because of the huge economic and psychological disadvantages of continuing dispute. The economic drag and loss of economic productivity caused to people and businesses involved in lengthy disputes at all levels of society is far greater than most people can imagine” (see para 15 of his speech). Large tracts of Sir Geoffrey’s speech considered the role of mediation and why it should be mandatory. He also explained how he considered his vision of a digital justice system would diminish the concerns about mandating mediation.
In 2018 the Civil Justice Council ADR Working Group issued its final report on the role of Alternative Dispute Resolution (including mediation) in the delivery of civil justice (CJC ADR Report FINAL Dec 2018 (judiciary.uk)). Interestingly, it was able to give some consideration to the role of an online court. Among other things it noted that, on the basis of the material available to it at the time, there was evidence of an increased number of defences to claims and there was no clear evidence that the inbuilt encouragement to use ADR was in fact successfully diverting claims to ADR (see sections 5.3-5.6 of the 2018 report). However, the report also recognised the opportunity of a digital justice system to empower litigants to settle more easily. But it did not support the idea of compulsory ADR (mostly, mediation).
In his speech of 8 June 2022, Sir Geoffrey referred to a 2021 report of the Civil Justice Council on the question of the legality of compelling ADR (para 24 of the speech; Civil-Justice-Council-Compulsory-ADR-report-1.pdf (judiciary.uk)). The 2021 report noted that it was not its purpose to undertake an overall review of the role of ADR in civil justice (para 114 of the 2021 report). Of course, it didn’t need to – that had been done by the 2018 report. But unless I am mistaken (my family and friends will say I often am), the 2021 report makes no reference at all to the 2018 report, in effect of the same organisation. That is a bit odd, even if one can say that the very limited purpose of the 2021 report (can ADR legally be compelled) was so narrow, it didn’t need even to acknowledge the 2018 report.
The other reason for thinking about compulsory mediation now was the costs (and other matters) decision in the case of Richards & anor v Speechly Bircham & anor (Richards & Anor v Speechly Bircham Llp & Anor (Consequential Matters) [2022] EWHC 1512 (Comm) (16 June 2022) (bailii.org) 16 June 2022). In the context of the costs order the court needed to make following its determination of the substantive claims, the judge was asked to make against the defendants a more onerous costs order than usual because, it was said by the claimants, the defendants had unreasonably refused to mediate. That such a decision is within the gift of the court is beyond doubt and acknowledged in the 2018 CJC report. Among the reasons for refusing to mediate offered in response to various invitations to do so, the defendants asserted the claim was doomed to fail (in the event, it did not) and they also referred to the costs of the mediation process and, in one response, that they would consider ADR once disclosure had taken place. In the Richards case, the court decided that the defendants had unreasonably refused to mediate but, while that might have resulted in judicial sanction in the form of a more onerous costs order, other important factors in the case in favour of the defendants meant that the court declined to go as far as the claimants wanted (see paras 5-26 of the judgment).
In the Richards case, mediation was proposed by the claimants several times before the court claim started. The first was in December 2018. The trial eventually took place in March 2022, apparently lasting six days. What would have happened if mediation had been compulsory? Of course, one simply cannot say for certain.
As a mediator I am regularly met with initial despondency about the chances of there being a settlement and almost as regularly I am told (at the end, or soon after) that the party concerned could never have imagined settling as they did, or getting as close to settlement as they did. Notwithstanding those expressed initial misgivings, my innate optimism is such that I cannot help myself but to try my very hardest to help the parties settle (ultimately, it is of course up to them) and, I think, they cannot help themselves but to cooperate in my attempts to do so. Would this change if parties were actually compelled to engage with ADR (mediation)? I am not sure it would. In my experience and I suspect in practice, many parties more or less feel themselves already to be compelled to mediate because of the risks (in costs) of not engaging when they should.
So where do I sit now in relation to compulsory mediation? Still on the fence?
Making access to civil justice easier, quicker and cheaper has to be right. Will Sir Geoffrey’s vision come to pass? I don’t know. I hope so, but I am not so sure it will happen, or not as he would like. And that is a problem. So many times before there have been well-intentioned, well-argued proposals for something or other, but often the money is not there and vested interests intervene. Just look at what happened to Lord Woolf’s aspirations for better Access to Justice. Among other things a single, accessible set of rules were proposed, and yet we have a significant number of convoluted and sometimes seemingly useless provisions, some with serious traps hidden away among them.
Moreover, the burden on the court system is getting greater, with new laws likely going to increase them, and slow things down even further (for example, see some of the early commentary on the Government’s proposals to reform the rented property sector).
There is no doubt that litigation is already too expensive. Access to helpful, valuable, affordable advice is restricted for many. I realise I am part of that problem – I could not afford to instruct me.
It seems to me that it is still not clear how many more cases would be resolved if there were to be compulsory mediation. Will it make any difference to the existing burdens on society in relation to need in a civilised society for an effective system for resolving disputes (e.g. court log jams, and the cost of litigation)? Will it reduce the costs of disputes and the time it takes to resolve them?
I really do hope Sir Geoffrey’s vision for a digital justice system comes to pass in the form he envisages, but for now I think I remain on the fence in relation to need for compulsory mediation.