Is Mandatory Mediation the future?
Experiences in the UK
Mohammad Kader
Solicitor of England and Wales, UK
M Jashim Ali Chowdhury
Ph.D. Candidate, King's College London, UK
p. 31
Abstract
This paper argues that Mediation has been extremely
emphasized recently in the administration of civil justice in the U.K.
Explaining the series of English cases, particularly the most recent Lomax v
Lomax decision, the paper sets out the English legal system's historic journey
towards a full-fledged adoption of Mandatory Mediation. Experiences from Italy
(E.U.), Canada and the U.S.A. are almost touched upon where relevant. The central
argument of the paper remains that the legal world – common law or civil law
alike – is moving towards Mandatory Mediation as a sensible alternative to the
adversarial, time and money consuming traditional civil process. The prelude on
Bangladesh at the beginning is added for setting a stage for the Bangladeshi
readers from which they may feel the relevance of the topic we are talking
about.
A Prelude on Bangladesh
Mediation
as an efficient model of alternative dispute resolution (hereinafter A.D.R.) is
gaining momentum in the administration of civil justice in Bangladesh. The cost-effective,
expert-led, time-bound and confidential process of Mediation without relying on
a formal adjudicative process makes it an attractive option in terms of outcome
and peace of mind. Bangladesh's impressive experience with family court
mediation (under sections 10 and 13 of the Family Courts Ordinance 1985) has
inspired its inclusion in the Civil Procedure Code (sections 89A) as back as
2003. Mediation was later extended to the appellate stages (section 89C) in
2006. Mediation at both the trial and appellate stages were made mandatory by
another amendment in 2012. The Legal Aid Act of 2010 was amended in 2015 to
introduce meditation at the legal aid processing stage. The Civil Procedure
Code was again amended in 2017 to formalize the process of Mediation through
the legal aid officer. These apart, the Village Court Act of 2006 and the
Arbitration Act of 2012 also accommodate the scope of Mediation. Though there
is a perception that the Mediation is yet to be utilized to its full potential
in Bangladesh, the current paper tries to bring in the development of Mandatory
Mediation in the U.K. as the embodiment of global trend in this regard.
Introduction
The protracted and costly process of litigation is falling out of favor day by day. The Administration of Civil Justice in the U.K. is also seeking its way out of the costly and cumbersome process of litigation. Mediation is forcefully proposed as a viable alternative
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in this regard. It is less time consuming, less costly and more effective in terms of outcome for the parties and burden reduction for the courts. Legal systems around the world are opting for a pre-action procedure of Mediation and similar other consensual upshots of alternative dispute resolution (hereinafter A.D.R.). This essay investigates the practices, prospects and problems of making mediation "mandatory" in the U.K.
After discussing the historical evolution of the mandatory
mediation movement in the U.K., the essay touches upon experiences from Italy,
Canada and the U.S. State of mandatory Mediation in the U.K. will be
analyzed within the framework of Civil Procedural Rules (hereinafter C.P.R.)
and the latest direction of case laws including the latest decision of Lomax
v. Lomax.[1] One
of the principal dilemmas associated with mandatory Mediation is how to force
the parties towards it and how to sanction the recalcitrant parties failing to "behave".
Another issue of vital importance is how to make the parties "willing"
to do a legally sanctioned involuntary process of Mediation. The bottom line
argument of the paper, therefore, rests with a warning that while mandatory Mediation,
influenced by a global appreciation of the device, is justifiably gaining
momentum in the U.K., challenges would lie with better informing the litigants
of the benefits of the development. It would also call for better educating and
training the accredited mediators, in whose hands lies the future of the
process.
Understanding the Mediation
Mediation as an offspring of A.D.R.
involves an impartial third person, the mediator, who would help the parties to
come to a mutually acceptable resolution to their dispute.[2]
Adjudication and arbitration, though categorized as A.D.R., involve a legal
approach to dispute resolution, a formal arbitrator or tribunal and lastly, a
formal judgment binding the parties.[3]
Compared to these, Mediation is a non-binding, non-technical process where the mediator
- lawyer or non-lawyer - would be
facilitating the parties coming forward in good faith and in search of an amicable
solution.[4]
Growth of Mediation in the U.K.
Mediation has grown in volume and importance for commercial and family disputes across the world. There is an increased use of mediation clauses in commercial agreements. While Mediation as a compulsory procedure is endorsed in the U.K. only recently, Part 1 of the Civil Procedure Rules (hereinafter C.P.R.) has 'encouraged' the parties to mediate long since. It is claimed that Lord Woolf's 'Access to Justice' report of 1996 was the progenitor of A.D.R. in the U.K.[5] Though the Woolf Reforms aimed at reducing the cost of litigation,
p. 33
it was not wholly
successful in the remediation of the problems of contentious litigations.
Later, several other people of expertise, including Jackson LJ and Phillips and
Clarke L.J.J. joined the call.[6] In
2011, the U.K. Ministry of Justice (hereinafter MoJ) proposed a system of
automatic mediation referral and also a sanction for failure to comply with the
route.[7]
Though some tried to argue that the U.K.'s move towards a mandatory model of Mediation
is "practically and normatively problematic" and hence an "unwelcome
development,"[8] consistent
pattern of judicial precedents in the U.K. however, has welcome it in the
system. Accordingly, mandatory Mediation got its authoritative thrust in 2019
when the England and Wales Court of Appeal (hereinafter EWCA) upheld the
legality of a court-ordered non-consensual early neutral evaluation (E.N.E.) in
commercial matters under C.P.R.
English courts' "Encouragement"
for Mediation
As regards Mediation, the English courts have traditionally followed a tune of encouragement rather than compulsion.[9] Even the mediation clauses in commercial contracts were interpreted as unenforceable agreements to negotiate.[10] It was argued that agreement to negotiate is in effect an agreement to agree - which is legally void - and also an agreement to negotiate in "good faith"[11] or to apply one's "best endeavours"[12] – both of which are vague and unenforceable. This literalist view of mediation clauses however did not go unchallenged.[13] It was asserted that an express previous undertaking to negotiate must, at the least, impose some "implied obligation(s)" upon the parties.[14] As regards the problem of unenforceability, it was asked by Lord Neill as to how the common law courts could historically adjudge a "reasonable endeavor"[15] threshold, while a "good faith" threshold was lacking in justiciability.[16]
Lord Neills' view found strong support from a 1992 case in New South Wales, Australia, namely – The Hooper Bailie case. Giles J., in that case, drew a clear distinction between an agreement to agree and an agreement to negotiate. Giles J. was of the opinion that an agreement to negotiate, being one to go through a process, could be enforced judicially.[17]
p. 34
The distinction was later endorsed by the English courts in Dunnett v Railtrack Plc[18] and Cable & Wireless v. I.B.M.[19] Now, the mediation clauses being judicially enforced,[20] attention moved towards the desirability of a mandatory approach to Mediation and tools that might be applied towards that direction.
The English courts, in a disguised bid to "encourage" Mediation, have used different forms of A.D.R. orders and detailed recommendations as carrots and at the same, threats of sanctions as sticks. Courts admittedly did this in pursuance of the C.P.R.'s "overriding objective" of dealing with cases justly and proportionately.[21] Absent the scope of imprisoning someone for not mediating, courts usually sanctioned costs upon the recalcitrant.[22] There have been suggestions of bringing the contempt of court or dropping of the case from the docket[23] and even imprisoning - as a last resort - under the C.P.R.[24] Courts however, did not resort to either course, reckoning a possible violation of the European Court of Human Rights (hereinafter ECHR) perhaps.
English Courts' journey
towards Mandatory Mediation
Realizing the below the bench performance of voluntary mediations, the U.K. High Court and Court of Appeal soon started to rise up and pass different A.D.R. orders.[25] Lord Wolf recognized the A.D.R. as a "must" in public fund related cases.[26] In Dunnett v. Railtrack, Schiemann LJ recommended a pre-appeal stage of Mediation while Brooke LJ, described the duty to aid the court, by following its A.D.R. orders, as an important consideration in awarding costs.[27] Dunnett was a judgment where a winning party lost its right to costs against the loser as a sanction against its reluctance to pre-trial A.D.R. In the same year, Lightman J., in Hurst vs. Leeming vehemently criticized the high cost of civil litigation and the importance of A.D.R. in the English civil justice system.[28]
Shokusan v Danovo[29], however, marks one of the earliest expressions of judicial interest in mandatory Mediation as such. Though the mediation enthusiasts were extremely unhappy with the growth of tedious litigations,[30] moving straight to a strict rule of mandatory Mediation appeared problematic. Though the Children and Families Act of 2014 have compulsory information sharing and pre-trial assessment, it falls short of introducing
p. 35
compulsory Mediation as such.[31] The recent A.D.R. report of the Civil Justice Council, therefore, suggested a 'Notice to Mediate' formula, which would impose a burden upon the opposition to 'consider it seriously'.[32] The proposed Mediation (Scotland) Bill of 2019 also ended up in compulsory information sharing and assessment and fell short of compulsory Mediation.[33]
The most aggressive step, however, came
from the England and Wales Court of Appeal in 2019 when it held that a
judge-led E.N.E. under the C.P.R. does not require the consent of the parties.[34]
It was an inheritance dispute between the spouse and stepson of a deceased
under the Inheritance (Family and Dependants Act) 1975. The spouse's proposal
to find a settlement through the E.N.E. was refused by the stepson. Mrs. Justice
Parker of England and Wales High Court expressed her dire helplessness in not
being able to order a mandatory E.N.E., while, in her opinion, the case 'crie[d]
out, indeed scream[d] out,' for it.[35]
At the appeal, the EWCA was rather straight in holding that consent of parties
under C.P.R. rule 3.1(2)(m) was not required in this case. Moylan LJ held that
absent an express requirement of consent in the rules C.P.R.'s, the 'overriding
objective' of cost efficiency and speedy disposal would get priority.[36]
It is interesting to note that Lomax is not a mediation case per se. Therefore,
the EWCA distinguished this case[37]
from the situations of Halsey v
Milton Keynes N.H.S. Trust[38]
, which took an encouragement approach over a compulsory one. Yet, the EWCA has
shown intuitiveness in reckoning that its decision in Lomax is going to
fire up a movement for mandatory Mediation and hence gave a bright green light
to the movement by putting in the record that "the courts have gone a long
way since Halsey".[39]
Automatic Referral Approach to
Mandatory Mediation
Mandatory Mediation has been promoted in jurisdictions like Italy, Canada and some states within the U.S.A. Approaches taken by those jurisdictions comprise a rather innovative Automatic Referral System (hereinafter A.R.S.) approach to Mediation.
The Court of Justice of the European Union (hereinafter CJEU) in Alassini vs. Telecom Italia case[40] considered Italy's legal requirement of automatic mediation referral in telecommunication disputes.[41] CJEU considered the matter in light of articles 6 and 13 of the European Convention on Human Rights (ECHR) and also article 47 of the European Charter of Fundamental Rights (ECFR). Opponents of compulsory Mediation argued that it
p. 36
would restrict the litigants' right to protection of the court.[42] The Italian government's argument was based on burden reducing and efficiency-enhancing potentials of the requirement.[43] The CJEU found the Italian A.R.S. conducive to effective judicial protection. This, in fact is a reconfirmation of Dyson LJ's critique of the U.K.'s Halsey decision. Dyson argued that mandatory Mediation might at best cause a short delay in the court process, which could not be construed as interference with peoples' right to have trial as such.[44]
Like the Italian government, the government of Ontario, Canada commissioned a Civil Justice Review (C.J.R.) which recommended mandatory Mediation.[45] Rule 24.1 of the Civil Procedure thereafter established a mandatory mediation procedure in non-family civil matters coming to the Ontario Superior Court of Justice. Rule 24.1 has been demonstrably successful in expediting disposal of cases.[46] Importantly, the A.R.S. system adopted in Ontario has a three-prong test for the parties not wishing to pursue it. They need to show that they have understood the process fully, they have an explanation for considering it ineffective and also, they have an alternative way of cost-effective dispute resolution.[47]Compared to this, the A.R.S. in the U.K. has been criticized for containing a rather lax rule of exemption.[48]
Again, various states in the U.S.,
such as Florida, Virginia and Tennessee, have A.R.S.s for Mediation. The
proactive approach of the U.S. courts was showcased in re Atlantic Pipe Corp,
a case in the U.S. Court of Appeals for the First Circuit. It was held that a
federal trial court has the inherent authority to order mandatory Mediation if
appropriate.[49]
Contradiction with Confidentiality Rule
The C.P.R. accommodates a degree of compulsion by posing a threat of awards of expenses upon the unwilling party. C.P.R. r 44.5(3) states that "efforts made" by the parties "before and during the proceeding" will have an impact on the award of cost.[50] This appears in contradiction with the confidentiality rule of Mediation.[51] If the recalcitrant parties are to be punished for their conduct (show of unwillingness) during a forced mediation, it will impact the confidentiality of the process and voluntariness of the settlement itself.
p. 37
Admittedly the most
attractive feature of Mediation is the scope to negotiate "without
prejudice".[52] Now,
pursuing the C.P.R. r 44.5(3) poses a risk of damaging a process which the
judges so dearly sponsor. A recent decision of the Supreme Court in Oceanbulk
Shipping v TMT Asia suggested that without prejudice, communications may be
used as a "factual matrix" for construction of the resultant
settlement agreement.[53] While
such use of without prejudice communications may help to understand a resultant
settlement in its proper context,[54] its
possibility itself constitutes a Damocles' sword upon the mediating parties.
While article 7 of the European Mediation Directive seeks to protect mediation
confidentiality by limiting its breach only for the sake of "overriding
considerations of public policy",[55] the
pre-Oceanbulk U.K. courts would use an "interest of justice"
threshold. Apparently, the European standard is more rigorous than that of the
U.K. It is apprehended that the post-Oceanbulk court might be willing to
look into without prejudice communications if those appear "relevant"
for deciding cases.[56] It
appears that the U.K.'s move towards mandatory Mediation would need to
reconcile a "clear and strict boundaries" around the lifting of
mediation confidentiality.
Conclusion
The U.K.'s move towards
mandatory Mediation is clear. England and Wales already have compulsory A.D.R.
in family matters for quite some years. Scotland took a very decisive step
towards that direction in 2019 through its Mediation Bill. Italy, Australia,
Canada, U.S.A., Turkey and, very recently, Portugal has introduced mandatory Mediation
in various areas of civil justice administration, including family disputes,
commercial litigations, telecommunication disputes and consumer protection etc.[57] England
and Wales' online Money Claims Portal has a pre-action mediation system
included in it. The trend clearly supports the Lomax v. Lomax court's
view that Halsey's reservation to
mandatory Mediation is on the verge of collapse. Yet, the concept itself being
a new one, it is likely to be clothed with suspicion and reluctance.[58] Hence, Lord
Clarke emphasized mediation studies as the key to compulsory mediation smooth
integration within the C.P.R.[59]Also
important in this regard is the availability or unavailability of a duly
qualified stock of mediators. Mediators remain key to the success of the
process which might be imposed upon otherwise unwilling parties. It is the
competence, skill and charisma of the mediators that could make them believe in
the process. It has, therefore, been aptly pointed out by the U.S. District
Court of Appeal in re Atlantic Pipe Corp:
Mediation
with the assistance of a skilled facilitator gives parties an opportunity to
explore a much wider range of options, including those that go beyond conventional
zero-sum resolutions.[60]
[1] Pauline Lomax vs. Stuart Lomax [2019] EWCA Civ 1467
[2] Martin Shapiro
(1981), ‘Courts – A Comparative and
Political Analysis’, University of Chicago Press, p. 3.
[3] R. J. Ridley-Duff
and A. J. Bennett, (2010), “Mediation:
developing a theoretical framework
to
understand alternative dispute resolution”, a paper presented before the
British Academy of
Management, University of Sheffield,
14th-16th September 2010.
[4] Jens M. Scherpe and Bevan Martin (2013), “Mediation
in England and Wales: Regulation and Practice” in Klaus J. Hopt,
Felix Steffe (ed), Mediation: Principles and Regulation in Comparative
Perspective,
Oxford University Press, pp 365-454.
[5] Lord Woolf MR, “Access
to Justice Final Report” Interim Report in 1996 & Final Report in 2006,
Available online: https://webarchive.nationalarchives.gov.uk/20060213223540/http://www.dca.gov.uk/civil/final/contents.htm;
Accessed on May 6, 2020.
[6] Jackson LJ, “Review
of Civil Litigation Costs”, Final Report, December 2009 (Chapter 36); Lord
Phillips CJ, “Alternative Dispute
Resolution: An English Viewpoint”, India, 29 March 2008; Lord Clarke, MR, “Mediation - An Integral Part of Our
Litigation Culture”, a Lecture in Gray’s Inn, 8 June 2009.
[7] The UK Ministry
of Justice, “Family Justice Review”,
November 2011, Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf, Accessed on May 7, 2020.
[8] Helen Waller, “Towards
Mandatory Mediation in England?”, The Student Journal of Law, https://sites.google.com/site/349924e64e68f035/issue-5/towards-mandatory-mediation-in-england
(Accessed on May 8, 2020).
[9] Lord Dyson (2011), "A
Word on Halsey v Milton Keynes”, 77(3) Arbitration 337
[10] Per Denning LJ, Courtney &
Fairbairn Ltd vs. Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297, p. 301
[11] Per Ackner LJ, Walford v. Miles [1992]
2 AC 128, p. 138.
[12] Per Millet LJ, Little v. Courage Ltd [1995]
CLC 164, p. 169
[13] Sir Anthony Clark
MR (2008), “The Future of Civil
Mediation” Speech at the Second Civil Mediation Council Conference, London,
May 8, 2008, available at: https://www.innertemplelibrary.com/2008/05/the-second-civil-mediation-council-national-conference-the-future-of-civil-mediation-speech-by-sir-anthony-clarke-master-of-the-rolls/ Accessed on 11
May 2020.
[14] Alan Berg (2003), “Promises to Negotiate in Good Faith” 119 Law Quarterly Review 357.
[15] Queensland Electricity Generating Board vs. New Hope
Collieries [1989] 1 Lloyd’s Rep 205, PC
[16] Patrick Neill
(1992), “A Key to Lock Out Agreements” 108 Law Quarterly Review 404
[17] Hooper Bailie
Associated Ltd vs. Natcon Group Pty Ltd [1992] 28 NSWLR 194, p. 206.
[18] Dunnett vs. RailtrackPlc [2002]
EWCA Civ 303
[19] Cable & Wireless Plc vs. IBM UK Ltd [2002] EWHC 2059
[20] DGT Steel & Cladding Ltd vs. Cubitt Building & Interiors Ltd [2007]
EWHC 1584 (TCC); Hyundai Engineering & Construction Co Ltd v. Vigour Ltd [2004]
[Hong Kong] HKEC 444
[21] Civil Procedural
Rules 1998 (CPR), Rule 1.1(1)
[22] Ibid, Rule 44.5.
[23] Lord Phillips CJ, Supra
Note 6, quoted in Shahla F. Ali (2018), Court Mediation Reform: Efficiency,
Confidence and Perceptions of Justice, (Chapter 3), Edward Elgar.
[24] CPR Schedule 1 and 2.
[25] Hazel Genn (2008), ‘Judging Civil Justice: The Hamlyn Lectures 2008’, Cambridge
University Press, 2010, at p 98.
[26] Per Lord Wolf, Cowl and Others v Plymouth City
Council [2001] EWCA Civ 1935
[27] Supra note 18.
[28] Hurst vs. Leeming [2002] EWHC 1051
[29] Shokusan vs. Danovo [2004] All ER (D) 61 (Aug)
[30] Paul Randolph
(2013), “Compulsory Mediation”, https://www.mediate.com/articles/RandolphP1.cfm , Accessed on May
9, 2020
[31] The Children and
Families Act 2014, Section 10(1).
[32] Civil Justice
Commission, “ADR and Civil Justice”,
CJC ADR Working Group Final Report, November 2018, Recommendation 24, at p 53,
Available: https://www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf;
Accessed on May 9, 2020
[33] Proposed
Mediation (Scotland) Bill, November 2019; Available: https://www.parliament.scot/S5MembersBills/20191112FinalSummary(1).pdf
, Accessed on May 9, 2020.
[34] Supra note 1.
[35] Ibid, Para 123
[36] Ibid, Para 32
[37] Ibid, Para 25
[38] Halsey vs. Milton Keynes General NHS
Trust [2004] EWCA Civ 576
[39] Supra Note 1, Para 27.
[40] Rosalba Alassini vs.
Telecom Italia SpA (C-317/08) [2010] 3 CMLR 17
ECJ.
[41] Ibid, Opinion of AGKokott’s, Para 1.
[42] Ibid, Para 43
[43] Ibid, Para 45
[44] Lightman J (2007), “Breaking
Down The Barriers”, The Times Online, July 31, 2007.
[45] Rosenberg and Folberg (1994), “Alternative Dispute Resolution: An Empirical Analysis” 46 Stanford
Law Review 1487.
[46] Colin Szkarlat
(2019), Ontario’s Mandatory Mediation Program Lessons, Outcomes, and the Impact
on Dispute Resolution, Global ADR Strategies (GADRS), Available at: https://www.margaretmitchell.org.uk/sites/www.margaretmitchell.org.uk/files/2019-08/Appendix%203%20PK%20-%20Research%20-%20Ontario%27s%20Mandatory%20Mediation%20Program%20for%20Paul%20Kirkwood%20%28002%29.pdf
, Accessed on May 10, 2020
[47] Prince (2007), “Mandatory
Mediation: the Ontario experience” 26 Civil Justice Quarterly 79, at p. 84.
[48] Dorcas Quek (2010), “Mandatory
Mediation: an Oxymoron? Explaining the feasibility of Implementing a
Court-Mandated Mediation Program”, 11 Cardozo Journal of Conflict Resolution
479 at p. 501
[49] Re Atlantic Pipe Corp. United States Court of Appeals for the First Circuit 304 F.3d 135 (2002)
[50] Supra note 21, Rule 44.5(3)(a)(ii).
[51] A Marriott (2004), “Mandatory
ADR and Access to Justice”, 4 Arbitration 307
[52] AKC Koo (2011), “Confidentiality
of Mediation Communications”, 30(2) Civil Justice Quarterly 192.
[53] Oceanbulk
Shipping and Trading SA vs. TMT Asia Ltd [2010] UKSC 44
[54] Adrian Zuckerman (2011), ‘Without
prejudice interpretation - with prejudice negotiations: Oceanbulk Shipping
and Trading SA v TMT Asia Ltd’, 15(3) The International Journal of Evidence
and Proof, 232 at p. 238.
[55] Directive 2008/52/EC, Article 7.
[56] Supra note 8.
[57] Tang Houzhi (2009), “Mediation is developing around the World”,
17 (Supp 1) Asia Pacific Law Review 31.
[58] Kent Dreadon (2005), “Mediation:
English developments in an international context”, Arbitration 112.
[59] Lord Clarke,
MR, supra note 6.
[60] Atlantic Pipe
Corp., 304 F.3d 135 (1st Cir 2002), Para 39.
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