Quicker, cheaper, better – mediation facts or myths?

New Public Law Project (PLP) research into mediation and Judicial Review (JR) indicates that there are many assumptions about the value of mediation, but little evidence to justify most of them. Interviews with experienced public law practitioners established that despite the enthusiasm of mediators and some judges, mediation rarely takes place in JR cases. So why this gap between rhetoric and reality?
 
Some mediators and policy makers suggested that lawyers were acting as gatekeepers and blocking access to mediation. They gave two reasons – maximising profit from the litigation process, and ignorance of mediation. The research found no evidence to support either claim. Since the vast majority of JR cases settle at some stage, lawyers are clearly not prolonging litigation for their own advantage. And although many lawyers were unclear about exactly how mediation works, and confused it with other forms of settlement negotiations, even practitioners who are trained mediators and who are fully aware of the potential benefits of mediation rarely engage in mediations in public law disputes. So if lawyers are not the problem, why is mediation not being used in public law cases?
 
Many lawyers claimed that mediation was simply not appropriate for public law cases in principle – the reasons given included the need to establish judicial precedents, the need for transparency and publicity in public law cases, and issues of power imbalance between unequal parties. However, this cannot be the only reason. Only 5% of JR cases reach a final hearing, and the rest are settled at some stage: as one public law solicitor argued: ‘If directly negotiated settlements are not considered constitutionally suspect, than surely neither are mediations?’
 
One possible explanation for the minimal use of mediation in JR cases is the way in which the JR process works to encourage settlement. For the first time, figures from this project and from another PLP research project published simultaneously, 'The Dynamics of Judicial Review', give a very clear picture of what is actually happening.

• As soon as a letter before claim is sent (1) 62% of potential cases are settled or abandoned
• Of the cases where a claim is actually issued, 34% are withdrawn before the permission stage (2) - the vast majority are settled in favour of the claimant, either by an agreement to review an earlier decision, or by offering a substantive benefit to the claimant
• Of the cases where permission is granted 56% are withdrawn before further action – again most of these settlements favoured the claimant (3)

According to the evidence gathered by PLP, it seems clear that litigation, or the threat of it, brings public bodies to the negotiating table. An offer of mediation is unlikely to be accepted by the defendant until JR is a potential course of action. And once a JR has been threatened or issued, then cases that can settle do so, usually as a result of discussions between the parties' lawyers. Mediation seems to offer little added value.
The PLP report concludes that mediation providers and policy makers have promoted the use of mediation without distinguishing between different legal contexts. In commercial disputes, mediation may offer a dispute resolution process that is cheaper and quicker than litigation. But the research found no evidence that mediation is ever quicker or cheaper than the Judicial Review (JR) process. However, it did find that in a small number of cases involving protracted personal hostility, a successful mediation enabled the warring parties to untangle their conflict, and work out a detailed solution that benefited vulnerable individuals. In some cases this, took place after a judicial determination of the key legal issues in dispute.
 
The study concludes that the simplistic idealisation of mediation is not at all helpful.
 

(1) This figure is based on estimates given by claimant solicitors interviewed for the 'Dynamics of Judicial Review' research. See page 15 for the subject matter of the cases.
(2) Note that the settlement rate varies considerably between 62% for homelessness cases and 5% for cases involving the police.
(3) Only 8 out of 54 cases were withdrawn pre-permission without benefit.