The scheme, headed by Deputy District Judge Peter CAUSTON of Promediate, will be available to all comers at court and that the judges and court officers will be encouraging parties in all types of dispute to seek mediation at an early stage, at the latest by the time they file directions questionnaire.
Peter has kindly accepted me onto the panel of a dozen or so mediators who will be allocated cases on a cab rank basis, subject to any conflict of interest.
All mediators (like myself) are experienced and CMC registered and the aim is to not only encourage those in proceedings to choose mediation but to press home the message from Lord Justice Briggs that mediation should be a first port of call not the last, as per his comments in PGF II SA v OMFS Co Ltd EWCA Civ 1288 “the time has now come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable”
The pilot flows from Stage 2 of the Civil Courts Structure Review, in which Lord Briggs determined that:
I. Mediation was performing a broadly satisfactory role at the higher value end of the civil litigation spectrum, above £200,000. Few high value cases now come to trial without one attempt at mediation (or sometimes more), and in many fields only a very small minority therefore get to trial at all.
II. Mediation was showing signs of success for resolving low value claims up to £10,000.
III. There was a real gap in mediation (or ADR) penetration in relation to the claims in between (£10,000 to £200,000) and particularly in relation to personal injuries (including clinical negligence) cases.
IV. Recent sharp rises in court issue fees had led to a rise in pre-issue mediation.
At last September's Annual Mediation Symposium Briggs LJ went on to comment that "I do not mean that we plan to make mediation or other resolution processes compulsory. Parties may still say no, but the cultural norm will be to take part. Going to court will be seen as a process aimed at resolution, not just, or even primarily, at trial.” Adding what has become one of my favourite quotes about why mediation works
“determination empowers no-one, but resolution empowers both sides”
The benefits of mediating solutions rather than litigation are recognised internationally for instance in the Czech republic, where dispute resolution was incorporated into the legal system in 2012 (in compliance with Directive 2008/52/EC on Certain Aspects of Mediation in Civil and Commercial Matters).
Czech mediation law ensures that the limitation period on a case is automatically stayed and once agreement is reached can, if necessary, go into a fast tracked court approval process. In addition, and something not likely here, the court will refund 80% of the claimant’s court costs if the case settles before getting to trial.
Since mediation was enshrined in the Czech legal process 75-80% of disputes have settled via mediation.
As another example look to Turkey, in just the first 8 months of 2017 it is reported that mediation has resolved 11,145 labour disputes without the court becoming involved, a success rate of 91%, amounting to twice the sums involved in mediated settlements in the previous four years. As a result of which head of the Mediation Department at the Ministry of Justice Hakan Öztatar has now told reporters that legislation will be brought in to ensure that mediation is entered into in all labour disputes.
“With the enforcement of mandatory mediation in labour disputes, approximately 400,000 files will be taken care of by mediators. Mandatory mediation will reduce the labour lawsuits that take 434 days to a single day or less. Furthermore, this legislation is also crucial for the 17 million employees and 1.5 million employers, because it will help society improve its culture of reconciliation and contribute to the peace between employees and employers. The total number of mediators is 13,446. The new legislation will make this number increase and provide employment opportunities,”.
So the Law Lords know that mediation works, Czech and Turkish governments (amongst others) can show the huge time and costs benefit that mediation brings to individuals and society as a whole, so why is it that people still litigate?
The factors are many, ignorance of the process and indifference to the requirements of the court rules certainly have their part to play as do reluctance of some lawyers to “hand over” a case to a mediator to work with both sides.
The pilot scheme will broadcast loud and clear the message that mediation is available, affordable and provides a resolution empowering both sides rather than a determination forced on both parties by the court.
If you have any questions about mediation or have a dispute which you would normally take to court – whether commercial dispute, corporate or individual including contact, inheritance and land, call me, Ed Johnson, on 07931318347 or contact me by email at email@example.com