Mediation today – settlement or structural failure?

Many might say that successive governments have been vigorously discouraging the public from bringing their disputes to court for resolution.  We have been hit by court closures across the country, massive increases in court fees, falling morale in the judiciary, failure to invest in technology, failure to maintain the real estate of the court system, the creation of legal aid deserts, the loss of the lord chancellor’s unique role, and the abandonment of appointing ministers for justice with legal qualifications and experience.

Moreover, there has been withdrawal of recoverability of success fees and ATE premiums, and repeated increases in insurance premium tax. Taken in the round, it is far from hyperbole to say that there has been a sustained onslaught upon the public’s right to civil justice.

I am not proposing in this article to embark on a treatise on the evils of obstructing public access to justice – although this is probably an area of jurisprudence that requires more attention. Coincidentally, the Brexit debate has thrown the spotlight firmly on the scope and exercise of the royal prerogative. What is easily overlooked (or positively ignored, particularly by a succession of politicians bent upon the commoditisation of access to justice) is that the obligation of the Crown to maintain the queen’s peace, and thereby relieve us from the need to bear arms to defend our personal rights, is a crucial part of the exercise of the royal prerogative.

If this obligation is ignored or abused by government, society becomes at risk of breaking down into unregulated chaos – and this can occur remarkably quickly, as the riots that swept across the country in August 2011 showed. In many ways, it is quite surprising that more citizens do not take justice into their own hands to resolve civil or family disputes which are now prohibitively expensive or logistically impossible for them to take to court.

This, you might think, is where a favourable climate for mediation would be created, on the same basis, perhaps, that extinctions in the ecosystem create opportunities for new life forms to evolve. But is it the case that mediation is flourishing in response to the increasing lack of access to justice in the courts? If so, this is probably not a consequence of any concrete incentives from the centre of power. The government’s stance in regard to mediation is deeply mixed.

Theory and practice do not correlate. On the one hand, the Civil Procedure Rules and the pronouncements of senior judicial reformers speak about the benefits of alternative dispute resolution. On the other, the publicly funded National Mediation Helpline was finally abolished by the Ministry of Justice in October 2011 – coincidentally a few weeks after the riots, and allegedly for a saving of less than £64,000. This has been replaced on the Ministry’s website with a bald list of providers, with no guidance whatsoever as to which provider may be suitable or not for the enquirer’s needs. Lawyers and clients alike can justifiably feel confused and inadequately served.

The received wisdom is that mediation is suitable for every civil dispute. Whether this is actually the case is debatable. Ministry of Justice quarterly statistics tell us that of many hundreds of thousands of cases issued every year, only a fraction even proceed to a defence, let alone further. A very large proportion of such cases are for undisputed debts, possession claims, insolvency, and other matters which can justifiably be regarded as routine business.

Are the majority of these settled by independent facilitation in ADR? If so, the probability is that they are going under the radar. The current fee scales set by the Ministry of Justice for claims referred via the online directory service range from a flat fee of £50 + VAT per party for a one-hour session to try to resolve a claim for £5,000 or less; to £425 + VAT for a four-hour session to try to resolve a claim of between £15,000 to £50,000 or less.

These fee scales presumably include all reading-in and administration time. So they are scarcely rich pickings for the aspiring mediator who has spent something in the order of £6,000 including VAT for an exhaustive training course of five days, and lost the value of their chargeable work for that period of time as well, not to say the further time spent later on unpaid observations and co-mediations.

The irony is that there have probably never been better qualified and more committed aspirants to mediatorship who cannot even get on the first rung of the ladder, even on a pro bono basis. This is a waste of talent which the powers that be largely seem indifferent about. It is remarkable in some ways, and a testimony to the ideals of the profession, that there still exists a regular stream of candidates who feel motivated to qualify as mediators at all.

Consider the seventh Centre for Effective Dispute Resolution Mediation Audit on civil and commercial ADR, published in May 2016, which does not include findings on the HMCS Small Claims Mediation Service. This showed that the growth of the civil and commercial mediation market is markedly slowing, having increased from 9,200 cases per annum referred to the market in 2014, to 10,000 cases per annum now. This figure is a mere fraction of the cases issued in the civil courts in England and Wales each year: according to the MoJ statistics for July to September 2016, a total of 494,198 claims were issued in that period alone, a 24% like-for-like increase.

Of these 10,000-odd mediation opportunities, CEDR estimates that about 70% of the referrals go to mediators chosen by the parties rather than by allocations to panel, and that about 145 mediators control 85% of the commercial marketplace. Given the inherent disincentives to parties in dispute to start upon the path of litigation in the current climate, this trend of reduced growth of referrals to ADR and lack of broadening of the mediator base appears counter-intuitive, and potentially significant. The notable rise of litigants in person and unqualified McKenzie friends in lower and increasingly mid-range value claims may not be unconnected.

Let us suppose, however, that we are engaged in handling or observing one of these 10,000 cases. What can we expect from today’s mediators and professional advisers? Taking a jaundiced perspective, there seems little doubt from anecdotal experience and evidence that legal practitioners are increasingly impervious to the arts of the mediator, quite possibly because many of them have been trained in mediation theory and practice themselves.

Some lawyers are also past masters at making aggressive demands for mediation on unfeasibly short timescales or with heavy preconditions attached, which in reality show more enthusiasm for positioning the client’s interests for a forthcoming battle in court or arbitration, than heading the dispute off on the basis of conciliation.

Yet others duck and weave, quibbling interminably over the qualification, experience and personal qualities of individual mediators, and refusing to engage until disclosure documents have been provided or expert reports exchanged, by which time the matter can be close to a hearing: sometimes even requesting admissions of fact or concessions of law to be made in advance as a precondition to mediate. The position statement is sometimes little more than the prolix reassertion of the statement of case in less formal terms, accompanied by unnecessarily large bundles.

When the parties arrive at the day of mediation, sometimes it becomes clear all too rapidly that the only objective is to try to wear the opponent down, avoid any serious engagement in bridging the gap in the parties’ expectations, and gather nuggets of information for use later on in the court process.

On the other hand, remarkable results can be achieved on intractable cases if the will to resolve matters is there, and the mediator is astute and hard-working. To answer the implied question in the title: despite a multitude of adverse forces being exerted, we are still seeing more in the way of successful settlements, than any structural failure of the mediation concept. However, the deficiencies of the public framework which allegedly supports it should not be underestimated.

Adrian Bingham is a partner at Gordon Dadds LLP and a member of the firm’s mediation group