Mediation and its counterparts are now considered a key part of the study of law. The processes, benefits and outcomes are now taught as integral areas of professional qualifications, such as the Legal Practice Course (LPC) and the Bar Professional Training Course. (BPTC) With such a clear move to indoctrinate the alternative dispute process on aspiring legal professionals, and the possibility of compulsory mediation as a pre curser to litigation, what are the thoughts of aspiring professionals on the possible change in litigation?
from the mind of Joshua Harris, edited by Ian Lennon.
Mediation is a process which carries with it undeniable successes, and which when used in the right circumstances is a altogether good thing, providing access to justice, a speedy and affordable process and a way of resolving disputes in a manner designed to restore and preserve relationships. “In all dispute resolution methods there is always pressure for change”[i], one such change mediation faces is the possibility of being made a compulsory precursor to litigation. This paper takes a short but critical look at the possible outcomes if a statutory requirement meant that mediation become compulsory within Civil and Criminal claims.
If mediation were to be turned into a compulsory part of the mediation process, then it would have to be carefully scrutinised, modified and constructed by lawyers, politicians the government to ensure that it was something compatible with government backing. This would mean statutory regulation of the process, legal clarity of the rules and a financial framework that works across the board. Providing it, in turn with a better, formalised structure, regulation of training and accreditation of mediators, higher quality of mediators, appeals processes, greater understanding, and improved access to justice, lower costs and a greater level of satisfaction from the parties involved.
Mediation when used properly and, in the right context is a beautiful tool for solving disputes where litigation is not needed and, should not be entered into. It is a flexible and informal process that allows the parties to vent their feelings and then work together to reach a solution that works for everyone, something that perhaps the court would not have been able to find. It does all of this while working to repair and maintain a working and amicable relationship between the parties so that they can continue to work together in the future without having to resort to a legal process again.
It sounds to be the perfect, attractive and satisfying process that is needed. That being said, mediation does have its problems. One of its biggest problems, in this author’s opinion, is that mediation is cheaper.
But surely that’s a good thing isn’t it? Greater access to justice for all? A way of solving disputes which is open to those of even the most humble of backgrounds as well as those born with the privilege to fund litigation for the smallest of slights?
Well, no, it’s not a good thing. “The essence of mediation is that it should be voluntary”[ii], the low costs incurred in mediation at present make it a tempting solution in two unenviable circumstances. Firstly, to the government as a means of lowering the costs of running an expensive and time consuming justice system, and secondly to the individuals involved in litigation that are looking for a cheaper, and quicker alternative. A key issue with this is that mediation is forced away from its roots, and turned into a cost saving solution; “it is important that mediation is seen as a dispute resolution process in its own right and not one which is only used in the face of the enormous costs of the alternatives of litigation or arbitration.”[iii]
At present, two of the main components of mediation, which lend themselves to the concept of compulsory mediation becoming a reality, are the speed and the cost. Though this author questions how long those costs can stay low, and the process can stay quick and efficient. Let us say that mediation were to become a mandatory precursor to all civil claims of any value. At present, the litigation process is slow because it is over subscribed, and it is expensive because it takes such a long time. If each of those litigants were to have to go through mediation before they could go to court, then mediation, which is a much smaller institution, would become massively swamped with far more litigants than it can cope with. As such, the speed of the process would be wholly ruined by lengthy waiting periods.
The institution of mediation would become as swollen as the court system presently is, due to the very thing that is trying to alleviate, that being, the pure numbers that will be compelled to use the system. Cynically, this may present a good light on the court system, if the numbers do indeed drop, which, in turn, will be banded around as a resounding success, however, complainants will effectively be stuck in the same position as they were in pre compulsory mediation, with long waits for simple problems.
Continuing with the theme of cynicism, if all initial work is going to mediators, then less work is going to those who have forged a career in legal services. Barristers and Solicitors may in turn train as mediators (which, granted, could speed the process up), but could also drive up the costs, as those lawyers would try to replace the fees they would have received from litigation, with what they can get from mediation. Thus driving up the cost of the process.
In this authors opinion, by making the process a compulsory precursor, you actively remove two of the main benefits for doing so, thus placing mediation into a catch 22 situation. “Jackson LJ agrees that alternative dispute resolution (particularly mediation) should be encouraged, but does not support compulsory mediation, in part due to concerns that it can increase cost and delay.”[iv]
Just Plain Daft?
Would mediation be a criminal, if criminals would mediate? Already there are is a great level of discussion and debate about the concept of criminal mediation becoming a reality in the United Kingdom, but how good an idea would this be?
“Victim-offender mediation (often called “victim-offender conferencing”, “victim-offender reconciliation” or “victim-offender dialogue”) usually involves a victim and an offender in direct mediation facilitated by one or sometimes two mediators/facilitators”[v]. How good an idea is it to place a criminal and their victim in the same room, and then allow that criminal a chance to influence the punishment they receive? It was said by Mr Justice Ramsey that “Mediation could take over the process of restorative justice, in which defendants meet the victims of their crimes. He said victims often feel marginalised or excluded by the criminal justice system and mediation would bring them and the defendant more into the process.”[vi]Perhaps for minor acts of vandalism, involving the defacing of a small flower bed this could be a good idea, where an apology and an agreement that the perpetrator will fix the flower bed would act as a suitable punishment. But then what about a theft, assault or offences involving venerable victims? To what extent will the criminal influence such a victim and consequently manage to influence their sentence and in essence, play the judge.
When it comes to dispute resolution and the criminal justice system there is always pressure for change to be instigated, if criminal mediation were to be introduced, though initially only for minor crimes, then over time there may be pressure for change. Eventually, schemes would be extended and would grow to cover a wider range of crimes from minor to sever, all in the name of restorative community justice.
If this is to happen, then we risk creating a culture whereby there is no longer any strong deterrent to petty crime, where criminals know that if they wish to avoid imposed punishment, all they have to do is look suitably repentant and offer to cut somebody’s law for 6 months on a bi-weekly basis.
If compulsory mediation within civil law is a bad idea, then compulsory mediation within criminal law would be downright absurd.
The crux here, taking a step back from the extreme, is that the very core principle of mediation, and the reason it works so well is that it is voluntary. If you take two people who are at utter loggerheads, and place them in a room to get them to talk over their issues, then to get a resolution they have to want to be there. Without that drive to reach an amicable solution, the process cannot succeed.
To conclude, compulsory mediation has the potential to drive up costs, slow down the process, damage and reduce the quality of resolutions, and also, by so greatly violating and removing the core principle of mediation and formalising the entire process, bring about an end to the current process of mediation that we seek to promote. To make mediation formalised, compulsory and regulated is to stop it from being mediation and, is frankly a wonderfully terrible idea.
[i] Vivian Ramsey, ‘Mediation 2020: a presentation to the Chartered Institute of Arbitrators’ 4th Annual Mediation Symposium, October 19, 2011’ (2012) Arbitration 159 at 159
[iii] ibid at 160
[iv] ‘Lord Justice Jackson and the Judiciary respond to the MoJ consultation, Solving Disputes in the County Courts’ http://www.civilmediation.org/news/lord-justice-jackson-and-the-judiciary-respond-to-the-moj-consultation-solving-disputes-in-the-county-courts/40
[v] Restorative Justice Initiative Website (Accessed July 2012) http://www.rji.org.uk/objectives/programme-description/victim-offender-mediation-vom/
[vi] Mr. Justice Ramsey: http://www.lawgazette.co.uk/news/criminal-case-mediation-2020