Will mediation save the justice system?
12 November 2010
Much has been made of the benefits of mediation and alternative dispute resolution (ADR) in recent weeks, both as a means of reducing the bitterness of family justice proceedings and also of saving money in the court system by keeping people out of it.
But is mediation a knight in shining armour or a trendy buzzword used as an excuse to keep people out of the expensive court system? The debate is often heard but rarely goes beyond anecdotal evidence. Lord Neuberger, our highly active Master of the Rolls, has given an excellent speech on the topic, entitled Has mediation had its day?, which presents the evidence on both sides, including references to a number of research studies.
He began by answering his own question: he is a “supporter, indeed a keen supporter, who has been vocal, in court and out of court, in favour of mediation and ADR“. Having put minds at ease, he went on to highlight the “current emphasis on the benefits of mediation can further our commitment to a government of law and how too great an emphasis may, if we do not take care, begin to undermine that commitment.” Moreover,
I perceive a tendency, which has in the past five years or so receded somewhat, to decry mediation as a trendy idea, with no real substance, and which will soon have had its day, so that dispute resolution in England and Wales will revert to being a mediation-free zone. I also perceive a tendency, which has found increasing favour in some circles particularly those in which saving money is the main aim, that mediation is a sort of universal panacea, which, properly developed, should obviate the need for an effective civil courts system
In order to put meat on the bones of his argument, he quoted conflicting studies as to the usefulness (or otherwise) of mediation and alternative dispute resolution in cutting costs and ending disputes earlier than if they reached court (see paras 21 to 27).
Ultimately, he makes some recommendations for the future. His focus is education, education, education:
In the first instance, public legal education is essential. Individuals should be able to easily access information about litigation and ADR. That information should be available at an early stage; if not at the earliest stage. It should be clear. It should be concise. It should set out the advantages and disadvantages of the various different methods by which disputes can be resolved; and all the while individuals should know that if for whatever reason consensual settlement, through one of the various means available, is not appropriate or does not succeed, they have ready and effective access to the civil justice system.
And not just the public need educating:
Furthermore, education of the legal profession and judiciary has to continue. Experienced mediators need to become ever more involved in the provision of training to those in the profession and judiciary;
He also recommends the expansion of ‘telephone mediation’, where a mediator shuttles between parties via telephone in order to attempt to reach a settlement.
He concludes that mediation has by no means had its day; and it is neither a panacea but also not just a fashionable solution to budget cuts:
It has an important part to play in dispute resolution, as do all forms of ADR. Increasing the use of mediation and other forms of ADR to help individuals resolve their disputes is a social good. The consensual resolution of any dispute is a social good.
Whilst the benefits of mediation and ADR are by no means clear, the Master of the Rolls’ evidence-based approach must also be that of the Ministry of Justice. Mediation and ADR have been presented as panaceas before, notably in the 1990s alongside the introduction of the Civil Procedure Rules. But there is no point in recommending alternative approaches to litigation unless they genuinely work. If they happen to save money, then that is an excellent outcome too.
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Nice post. Here’s the problem, unfortunately, at least in the States: mediators. We are unregulated and, in the main, poorly trained. We practice in secret and are accountable only to the parties who may be ill-informed or unprepared for the all-too-common occurrence of having their own lawyers team up with the mediator to force a settlement down their throats, commonly called “banging head’s together,” and approved (indeed sought) by many in the legal profession. As a blogger on negotiation and mediation, I hear far too many complaints from the clients that they feel their agreements have been coerced. Those who haven’t been coerced (lucky them!) have nevertheless been sidelined from the process or disregarded altogether so that they leave the mediation feeling bitter and unresolved, while their lawyers breathe a sigh of relief that the case is behind them and they can move on. Mediation CAN and MUST eventually begin to deliver justice or it will and should be assigned to the dustbin. What do people need? Not simply to have an end to their disputes but to have a just end to them. And that just end is not simply in the outcome as too many mediators believe (making another notch in their mediation belt so that they can say to their market “I have a 90% success rate,” deeming success to be resolution, any resolution, no matter how corrupt (confidences broken, gamesmanship prevailing, falsehoods in place) and no matter how unhappy their clients are with the proceeding. There is far too little discussion of justice in mediation circles ~ something the adversarial system continues to at least pay lip service to. What’s missing for the participants, the people with the problem, is procedural and interactional justice, not just outcome justice. Having been required to become an extern again at an advanced age (after twenty-five years of legal practice) to earn my LL.M, I observed dozens, if not hundreds of mediations. I witnessed mediators who were so afraid of conflict that they could not bear to have the parties in the same room at any time for any purpose and who were often loathe to have any conversation with parties even in separate caucus, pulling the lawyers out into the hallway to hammer out an agreement, making an appearance only at the end of the day to tell the clueless litigant that powers greater and wiser than him or her had decided this was the best way for the dispute to be resolved and so it should be. If we do not begin to require more training, including apprenticeship in which best practices are practiced, the public will eventually say NO and demand their day in court once more. Better to lose than to be treated with disrespect by the justice system they were once taught to respect.