Should England and Wales have a formal mediation bill?

A draft proposal for a mediation bill has been lodged with the Scottish Parliament for consultation. The Mediation (Scotland) Bill, proposed by Margaret Mitchell, MSP for Central Scotland, seeks to increase the use and consistency of mediation in Scotland.

The draft looks at some of the pros and cons of providing a formal mediation process. With compulsory mediation on the increase in both Europe and the USA, a successful bill in Scotland might pave the way for a similar proposal in England and Wales.

The current situation whereby the Civil Procedure Rules allow for costs sanctions against a party who unreasonably refuses to mediate has been referred to as implied compulsory mediation. We look at the possible benefits or drawbacks of introducing a more formal framework.

Benefits of mediation
The Scottish proposal lists several advantages of mediation, including the following:

The parties have greater control;

Costs are lower, for both the parties and the taxpayer;

When mediation is voluntary, there is the option to take the case to court if mediation is not successful;

Delays are substantially reduced as mediation can be arranged at short notice;

A professional mediator will help prevent the breakdown of the relationship between parties which is important if they are to continue working together;

It can be used flexibly, with parties meeting together or individually with the mediator;

Use of online technology allows mediation to be undertaken when convenient, for example via online meeting, again reducing delays;

Parties are more likely to comply with the agreed outcome than with a court order;

The burden on the court system is reduced.

Drawbacks of mediation
There are some existing problems with mediation and the public’s perception of it, including:

Uptake of mediation services can be low if people are unaware of the option;

Lawyers see it as a threat so may be reluctant to promote it;

Where mediation is compulsory, parties may come to the table reluctantly, with no intention to try and reach a deal;

Insufficiently trained mediators and lack of consistency in their approach;

Insufficient mediation facilities;

Lack of trust in the system.

The Scottish mediation proposals
The proposed bill seeks to address the problems and provide a well-structured formal framework that parties can rely on.

The court would issue a questionnaire for the parties to complete to assess suitability for mediation unless the case is one that is excluded from mediation, for example, judicial review proceedings, civil actions for abuse or sexual offences, employment disputes which are governed by statutory dispute resolution processes and certain family matters.

Once the questionnaires have been completed, there will be a Mediation Information Session with a court-appointed mediator.

The meeting would provide information about the benefits of mediation and examine the questionnaire responses as well as the parties’ attitudes to the process.

If they choose to continue with the mediation, they would assume the costs from that point and enter into a Mediation Commencement Agreement detailing the terms upon which the process would be conducted.

If the parties reached a settlement, then there would be the option for it to be the subject of a court order, allowing enforcement in the event of non-compliance.

Summary
A successful mediation bill would need to gain the support of the legal system. Lawyers who see mediation as a threat to their fees could think about training as mediators to add a new income stream.

The opportunities may well be substantial if a bill were to follow the suggested Scottish idea of making the consideration of mediation in a formal Mediation Information Session compulsory for most civil cases. Once the parties are in front of an appointed mediator, they may be more receptive to the benefits of settling a case in this way.

To be effective, mediation needs to achieve three things. Firstly, facilitating conversation between the parties, secondly evaluation of the dispute by a trained mediator and finally the transformation of the parties’ relationship so that they can move past the disagreement.

To achieve this, the public and the legal system need to be educated in the advantages and capabilities of mediation and encouraged to engage. An efficient administration will be needed together with good quality facilities. The system will need to provide well-trained and capable mediators to build trust and confidence in the system.

If a truly professional mediation system could be implemented, then disputing parties could avoid a lengthy, expensive and disruptive court battle and instead work together to find a more amicable and satisfactory solution.

To explore whether mediation can help to resolve your dispute, please call me on 07876 232 305 or email me at jonathan@lux-mediation.com.