Mediation is an important tool in the litigation process. It allows the parties and their legal representatives to discuss the merits of their respective cases and seriously consider whether a compromise can be achieved to avoid further lengthy and costly litigation. There are a number of advantages including getting a quick, cost effective and confidential settlement of a dispute. There are even occasions where parties who have engaged in mediation have come to an agreement that allows them to continue or even improve commercial relations.
There are already potential cost sanctions for parties who refuse to engage in alternative dispute resolution (“ADR”) without good reason. Mediation is one of a number of ADR options, but is it really appropriate to make it mandatory? So far the responses to the Civil Justice Council’s consultation have been cool on this point, and I would agree.
There is usually a time and a place for mediation, and in some cases, it is just not appropriate. Forcing two parties to attend a mediation at a certain stage of the litigation process may work for some cases, but for others it may only antagonise the parties and lead to them becoming entrenched in their respective positions.
The majority of lawyers will have been to a mediation where one party has attended with no intention of moving from their position, usually because they have been warned that refusing an invitation to mediate could put them at risk of a costs order being made against them. The mediation falls apart very quickly and the parties go their own way thinking “what was the point?”. As a result of the way the mediation breaks down, it can be very difficult to pick up settlement discussions later down the line.
Mediation can be effective, but both parties have to be open to it and willing to engage. Forcing parties to enter mediation when they are not in the right frame of mind may make it a worthless exercise and damage the possibility of settlement later down the line.
In my view, there are already sufficient cost implications against parties who unreasonably refuse to engage in ADR. The Courts should allow lawyers to advise their clients on the various options available and the appropriate times to use them. Perhaps, however, the legal profession should instead be looking to increase awareness of mediation services and continue to promote it as a useful tool.
Lawyers from different parts of the profession have warned rule-makers to be cautious about any attempts to impose mediation on parties, and warned against punishing those who opt not to mediate.