Is pressure to mediate counter-productive?
There has been a voluntary mediation scheme for fast and multi-track cases at Central London County Court (CLCC) since 1996. Over the years since the Woolf reforms, the number of parties using the scheme has increased significantly. Why? And how has this increase affected the settlement rate? How do users feel about the mediation scheme?
More pressure, less settlement?
In May 2007 Hazel Genn published her research into mediation at CLCC (1). The headline news is that there was a particularly steep increase in the use of the scheme after the Dunnet v Railtrack case in 2002, when a combination of increasing judicial direction and cost penalties made refusing ADR a risky strategy. Just 72 cases were mediated in 1999, whereas 293 were mediated in 2004. At the same time, the settlement rate at mediation fell significantly – from 62% during the1996-98 pilot, to 45% in 2004.
Hazel Genn suggests that there is a direct correlation between these two figures: the more pressure you put on people to mediate without regard to whether or not the case is suitable, the less likely they are to settle at mediation.
When is mediation appropriate?
Hazel Genn comments that the research indicates that the motivation and willingness of parties to negotiate and compromise is critical to the success of mediation. 'Facilitation and encouragement together with selective and appropriate pressure are likely to be more effective and possibly more efficient than blanket coercion to mediate'.
This contrasts with the views of some judges, who continue to press for some form of compulsory mediation. For example, Mr Justice Lightman recently criticised the Appeal Court’s decision in Halsey, that mediation should not be compulsory, as 'wrong and unreasonable'.(2) He said that 'an order for mediation does not interfere with the right to a trial: at most it merely imposes a short delay to afford an opportunity for settlement'. Hazel Genn's research found that cases where there is an unsettled mediation take longer and cost more; so compulsory mediation may not block eventual access to a hearing, but where it does not work it makes it more difficult. It is also worth noting from the research that over two thirds of unsuccessful mediations reach a settlement at a later stage anyway.
Mediation works in some cases, though it is hard for researchers to identify in advance (or even in retrospect) which cases are likely to benefit; Genn’s research failed to identify any significant indicators such as case type, value, or whether the parties are represented. The only clear evidence was that Personal Injury (PI) cases were very unlikely to mediate. This seems to create a somewhat circular definition – cases suitable for mediation are cases where the parties think mediation is suitable. Perhaps less effort could be put into trying to put pressure on unwilling parties to mediate, and more into identifying which cases could be encouraged to mediate, and why. It is time for voices outside the powerful commercial mediation lobby to be heard in this debate.
(1)'Twisting arms: court referred and court linked mediation under judicial pressure'
(2) Law Society Gazette 104/29, 19th July 2007, front page.