'Mediation without the credible threat of judicial determination is the sound of one hand clapping'

This was one of the conclusions drawn by Professor Hazel Genn in the Hamlyn Lectures at the end of 2008.
 
Her research into ADR, and mediation in particular, also led her to conclude that:

• The background threat of litigation is essential to bring people to the mediation table – if there were no courts, why would any defendant agree to mediate?
• Mediation works best when the parties enter the process voluntarily – the more the courts pressurise people into mediation, the less likely they are to reach an agreement.
• People should be informed about the full range of dispute resolution options, but not forced down a particular route.

 
She made these conclusions following a critical review of the history of the civil justice system in England since the Woolf reforms.
 
She argued that the escalating costs of criminal justice have increasingly reduced the money available for civil justice since the cost of civil and criminal legal aid were yoked together within a capped budget. Her research over recent years has involved spending time in "squalid court buildings", where too few staff struggle with too much work. This running down of the infrastructure of civil justice has been masked by the rhetoric of government policy: the reduction in legal aid is not about removing a welfare benefit to the poor, but about preventing fat cat lawyers stuffing their pockets with taxpayers' money.
 
At the same time, the government has been enthusiastically promoting ADR, on the grounds that adjudication is expensive, time-consuming and disempowering for individuals; ADR is a cheaper, quicker and more satisfying way to resolve disputes.
She suggests that the aggressive marketing of mediation by expensively trained but underemployed mediators has been co-opted by the government as a convenient way to divert attention from the need to fix the civil justice system and to resource it adequately.
 
The problem with mediation is that it reconfigures the enforcement of individual legal rights as mutual problems to be solved. She offers as an example the expensive stair lift bought by her mother-in-law, which repeatedly breaks down. Is this a clash of morally equivalent interests – the installer's interest in not having to come out to fix it, and the mother-in-law's interest in not getting stuck half way up her stairs on the way to bed as she lives alone and is immobile? Or is it an enforceable right under contract law to have a working stair lift that is fit for purpose? And will the problem ever be sorted out without the coercive power of the courts to direct the company to comply with their obligations?
 
There will be a seminar to discuss the lectures this summer, and the full text will also be published by Cambridge University Press.