Tuesday, May 8, 2018
Mediation has become one of the most vital ‘legal tools’ simply because it is possible to secure great outcomes without the risks of a trial and weighty litigation costs. The Civil Justice Commission has been looking at how it could gain more acceptance in other types of dispute. Their review is exciting and fast-moving and the ideas being considered could lead to significant new developments.
Many people are fans of mediation. In my case, I have been doing it for over 25 years. Mediation has become one of the most vital ‘legal tools’ simply because it is possible to secure great outcomes without the risks of a trial and weighty litigation costs, particularly the heavy expenditure at the final stages. It’s very well utilised for construction disputes and insurance disputes, hence my experience.
The Civil Justice Commission has been looking at how it could be spread further and gain more acceptance in other types of dispute. Their review is somewhat exciting. The review is also fast-moving and the ideas being considered include making the courts push mediation more actively. In fact, they go one step further and consider aggressively sign-posting the option for mediation at the outset of the litigation process.
It doesn’t stop there. The review also suggests more commitment to the idea of penalising parties with costs orders, where they don’t mediate willingly at the outset. A minority of the commission group were even in favour of mediation or other forms of alternative dispute resolution being the price for access to the justice system. This approach has not prevailed and should not.
The big question is how to normalise mediation. My biggest bugbear in a mediation is that many parties agree to it very late in the process. Possibly to avoid the risk of an adverse costs order sometimes meted out to an unwilling party. This approach almost seems to be designed to give lawyers a cost-building platform. Especially when the agreed requirements for production of documents before the mediation meeting are so great, that preparation costs a fortune, when in reality the parties know what the case is all about. In short, parties with medium-sized claims are priced out.
The most exciting development of the review is the prospect of online mediation for those facing smaller disputes. The process won’t have all the benefits of a negotiation over a day with everyone present. But it will be a solution for disputes where the costs are prohibitive, on top of the costs of litigation.