Unpacking Mediation 2: Voluntary

This is the second of five blogposts looking at key elements in the classic definition of mediation. My first published on 10 October 2018 discussed confidentiality: https://bloomsburyprofessionallaw.com/blog/unpacking-mediation/. In this one I ask: how voluntary is mediation? And: does it matter any way?

Let’s be clear.  There is a difference between disputing parties having to consider mediation, attend a mediation, and conclude a settlement at mediation.  These distinctions are routinely emphasised in official pronouncements e.g. the Jackson review, the Jackson ADR Handbook, and the Civil Justice Council’s report on compulsory mediation.

In practice, what people want to know is: do we have to go to mediation? Is the reality, despite what the theoreticians claim, that mediation is not voluntary in any meaningful sense of the word?

For example, parties in civil and commercial disputes are influenced to go to mediation either by contracts or the Civil Procedure Rules (CPR). Many contracts now contain dispute escalation clauses, which provide that the parties cannot proceed to arbitration or litigation until they have tried to settle their dispute by mediation. The courts will enforce these clauses. See Emirates Trading Agency (2015).

Under CPR, r 1.1-1.4 both the court and the parties have a duty to encourage and to cooperate in the use of ADR if the court considers this would further the overriding objective. Although courts cannot force a reluctant party to attend mediation they can impose costs sanctions even if a refusing party ends up winning at trial.  See what Briggs LJ said in PGF 11 (2013) and what Jackson LJ said in Thakkar v Patel  (2017):

‘The message which this court sent out in PGF 11 was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a cost sanction, even in cases where mediation is unlikely to succeed.’

The courts have not been entirely clear or consistent in their approach. But any one who does not try mediation before going to trial takes a risk. Not going to mediation is not a safe option.

In community mediation many referrals are from agencies, such as Social Services or Housing Departments. As Maria Arpa, an experienced mediator, asked at the 2018 London Mediators’ Day how much choice do tenants have when housing officers make a referral?  Not much- what tenants want is to avoid eviction.

It’s the same in workplace mediation. If there are circumstances, which could lead to a formal disciplinary or grievance process and HR suggest mediation what choice do employees really have?

In family disputes parties are required to consider mediation through the MIAMS procedure. This does not mean you have to go to mediation but you do have to consider it. Similarly in employment disputes, you cannot issue tribunal proceedings before making a reference to ACAS’s Early Conciliation process.

There also schemes under which cases are automatically referred to mediation eg for small claims and the Court of Appeal scheme.

So, in reality mediation isn't voluntary in the full sense of the word i.e. you have complete freedom of choice as to whether or not do something.  But at mediation you do have complete freedom on whether to settle or not. Most people choose to settle.

Does it matter whether mediation is voluntary? Many say yes and insist that mediation must be voluntary. Their usual reasons are:

1          By definition mediation is a voluntary process. If it is in any way compulsory it ceases to be mediation and becomes something else. Disputing parties attending mediation because they want to and not because they have to, is the very essence of the mediation experience. Making it mandatory turns mediation into a regulated or court process. This is wrong. Mediation is an alternative process after all.

2          Compelling reluctant parties to go to mediation reduces the chances of settlement. The whole point about mediation is that disputing parties find their own solution to their own problem. Nobody forces them to agree or imposes a decision upon them. Any hint of this happening will cause the parties to resist settlement.

3          Mandatory mediation is a denial of Article 6 of the Human Rights Act. Dyson LJ made this point in Halsey. Doubts have more recently been expressed about its validity. See the comments of Ward LJ in Wright v Michael Wright (2013). Nor does the EU think that it would infringe Article 6. See the EU Directive on Mediation in Civil and Commercial Matters- Article 5 (1) and (2).

On a practical level, persuasive evidence comes from those who mediate. Here is just one from a building dispute:

‘Our solicitor will tell you how sceptical we were about the whole process having regard to our opponent and the case history. To be frank, we saw it as a waste of time, money and emotions; it was a process we were being dragged through because the legal system said so and it was inevitable that the case would go to trial, we thought.

That we were proved totally wrong is due entirely to your skills as a mediator.  You… encouraged us to look at the case through our opponents’ eyes as well as our own and achieve a result which looks even better today than it did on Friday.’

Mediators recount how parties often start off saying that they think that it is all going to be a waste of time and that they don't really want to be there. But at the end of the day they happily admit that there were glad they came and are grateful for the result.

What has to be remembered is that clients at mediation are not interested in process. They are interested in outcomes. Sometimes horses are really glad to have water made available even if accompanied by some directive encouragement.

So is mediation voluntary? Practically speaking, not really. Does it make any difference? Practically speaking, not really.

A fuller discussion can be found in chapter 10 of my book Mediation Advocacy: Representing and Advising Clients in Mediation.

Stephen Walker is the author of: Mediation Advocacy: Representing Clients in Mediation (2nd edn); FAQs for Mediators; Setting up in Business as a Mediator; and Mediation: An A-Z Guide all published by Bloomsbury Professional.

Written by Stephen Walker

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