A lot has been made recently about the benefits of mediation. It is seen as a cost-effective and low-risk alternative to litigation, and much encouraged by the government, who are proposing compulsory mediation in matrimonial cases and possibly in all small claims in the County Court. And as small claims are likely to rise to £15,000 or £25,000 shortly (not so small in many people’s books) this is a serious matter.
For those of you who don’t work at the coal face of litigation, mediation is a facilitated negotiation, with the mediator usually flitting between the two parties pointing out the good and bad points in each other’s arguments. Ultimately if he (or she) is successful the parties come to an agreement, which is binding as a matter of contract. If not, then matters proceed, to litigation, arbitration , or just a stalemate, according to the parties’ wishes. And whatever is said in the mediation can’t be referred to in the litigation etc in the same way that “without prejudice” discussions are. It is increasingly popular for all sorts of disputes, from the largest to those between neighbours. It is undoubtedly a Good Thing.
The important point, and in many ways the reason that it works, is that it is and remains voluntary. The parties only take part because they both think it might be worthwhile, and only enter into an agreement because they prefer to do this rather than to take the alternative courses of action. The mediator can’t impose a decision on them, like an arbitrator, or decide a point of law, or indeed insist on anything. It is down to what the parties decide.
Now this means a lot of time in mediations is spent in second-guessing the alternatives. A wise mediator will say”I don’t think a Judge would be very impressed with that argument/that evidence”. Or he will say “do you really want to reveal all that in open court?” Or “do you realise how long/how expensive litigation will be?” The parties weigh their chances and decide to take the least worst option and settle. Or they don’t and decide that they would rather take their chances elsewhere.
It is much like negotiation between experienced lawyers. You think that you have a 50% chance of winning, but that the other side can’t afford to go all the way to court, and so you stick out for 90% of the claim. Or you take the opportunity of backing down without losing too much face on the grounds that your client needs to carry on trading with the other party come what may, and the cost can be factored in to future dealings. Or whatever.
Some of these arguments can be very much the arguments of the bully, or the hard-nosed world of unions and employers. If your client is big enough then they will be able to force a settlement on the other side because they can’t afford to stand up to them. It is reality, the law of the jungle.
But it isn’t always very fair. If your client has a good legal claim then unless the other side is prepared to concede it in mediation, which they may not for good tactical reasons, then the client has to be prepared to call their bluff and go to court, or give in. And mediation can’t provide emergency remedies, such as injunctions or freezing orders or even insist on (rather than just ask for ) suitable disclosure of documents, let along interrogate witnesses, even key ones.
Now, all of this depend on there being a practical method of getting the claim decided by court, for a sensible cost, and within a reasonable time. Without this, one party can be as unreasonable as they like and it doesn’t matter – nothing is going to happen. If the court system is cut to the bone, then it is unlikely to provide prompt and efficient justice. Mediation won’t prevent this.
Indeed it may make matters worse. If a client has to jump through a substantial mediation hoop before he is allowed to bring his claim to court, knowing all along that his thoroughly unpleasant opponent is never going to settle, wasting time and incurring cost, he is getting a much inferior sort of justice than he would if he can decide that mediation is going to be a waste of time and issue right away.
So mediation is not the answer. It is part of the answer, in conjunction with a way to determine disputes that don’t settle earlier. In many ways it is like the view of litigation given by Lord Woolf when drafting his reforms to the Civil Justice system: litigation is primarily a way of forcing the parties to settle without a trial, as +90% of them do, and the system wouldn’t work without this.
It won’t work on its own, and we must be worried that this point has been lost on the planners and politicians. We need to make sure that it gets across.