This question concerns a number of fundamental issues relating to the general principles that
mediation is a voluntary recourse in the event of a commercial dispute and that as a resource for dispute resolution, it is not a wholly voluntary process in England and Wales, and is moving towards ‘juridification’ as suggested by Brooker (2013). On the facts of this question the main area of investigation, looks to clarify the relationship between coercion and mediation within the court context in England and Wales.
The definition of voluntary mediation can best be described as a process of free will of the parties to partake in the mediation process. Volunteering is viewed as an essential element of Mediation. It is the essence of mediation that strengthens the parties in a collective and independent perspective and gives a wider acceptance of the results. This is what Fiss describes as the ‘individualistic, unanimous consent exalted by social contract tradition’. Non voluntary mediation can be defined as any measure of coercion exerted over the decision making of the parties in a court context towards mediation. The only difference is that the process is not based on the free will of the parties. However, studies and opinions show that in reality this is more complex and offers a diversity of situations where mediation becomes a non-voluntary process. The concept of non-voluntary mediation is defined more precisely in Jackson’s ADR Handbook, as the distinction made between mandatory consideration of mediation and the mandatory participation in mediation. Mandatory consideration of mediation is the obligation for the parties in a court context to consider whether mediation could be an appropriate resolution method to resolve their disputes. It must not be confused with mandatory participation. These transactions outline the existing paradox between the essential characteristics of the meaning of voluntariness in mediation and the growing implementation of modern forms of non-voluntary mediation processes referenced to by Brooker (2013) and other relevant legal authorities and other scholarly commentaries. Therefore the focus is on voluntary being an accepted process in the mind of the individual partaking in the mediation.
In order to clarify, the very nature and principles of voluntary and non-voluntary mediation it is important to look back at the origins of mediation within the legal system. After the Second World War, most civil European justice systems were redefined on the principle of court-based litigation and with the introduction of legal aid on a wide scale. In England in 1949 legal aid schemes where implemented and seen as one of the pillars of the Welfare State politics, providing justice for all. Several decades later, in the 1990’s, an uncontrolled growth of civil litigation was observed, particularly in family and commercial matters. This resulted in the struggle to control legal aid expenditure and from the 1980s onwards the rising cost to the taxpayer of the legal aid budget became increasingly a matter of political concern. This drew attention to the basic hourly rate of lawyers in England. Brooker highlights, the confrontational aspects of litigation in many common law countries eventually led to the experimentation with alternatives and the promotion of mediation, which has been tailored from a ‘community based system’ to a ‘dispute resolution technique’ used in a myriad of setting including family and commercial disputes. Clearly, countries with a common law tradition had developed a litigation process that had become unaffordable and highly unsatisfactory for most citizens, resulting in a need to increase access to justice. It is this crisis that has been the vehicle driving the rapid implementation of what is viewed by many as the non-voluntary mediation schemes within the court system and despite the fact that non voluntary mediation schemes started in England in the early 1990’s. England today officially rejects mandatory mediation. England does not provide a comprehensive regulated framework for mediation or other forms of ADR. Nevertheless, ADR, including mediation, has been integrated into court proceedings through the Civil Procedure Rules (CPR) in civil matters, and the Admiralty and Commercial Courts Guide in commercial matters. Under these rules there is no formal obligation for judges to inform the parties on ADR. However, the courts have the general duty to encourage the parties at all stages of the action to use ADR. Alongside these provisions, there are many other providers of information on mediation and an existing climate of opinion in England calling for a cultural change, i.e. to ensure that information on benefits of ADR, including mediation is spread more widely and robustly. Accentuated in Rupert Jackson’s 2010 costs regime report that in England ‘ADR is, however, under-used, and its potential benefits are not as widely known as they should be’.
As it stands in England, judges can order cost sanctions under specific circumstances. Indeed, English courts can impose financial sanctions for a failure by a party to enter into mediation in circumstances where it was considered reasonable to do so. Which some perceive as a form of coercion. Demonstrated in the leading case, Halsey v Milton Keynes General NHS This case is seen to have established the principles to be applied by the court in deciding whether to impose costs sanctions, setting guidelines to determine unreasonableness. The guidelines to determine unreasonableness have been listed to the following criteria: The nature of the dispute, the merits of the case, the extent to which other settlements methods have been attempted; whether the costs of the ADR would be disproportionately high; whether any delay in setting up and attending the ADR would be prejudicial; whether the ADR had a reasonable prospect of success. While the overall trend in cases before Halsey had been to encourage parties to mediate whenever possible, previous decisions indicated that the law was still developing. Demonstrated in key cases such as Dunnett v Railtrack Plc and Hurst v Leeming . The case of Dunnet implied that litigants can reasonably refuse ADR. While in the case of Hurst there is a get out using terminology if there is no real possibility of getting an outcome from a case. The case of Halsey is significant; in that it confirms the central place of ADR in dispute resolution and is a clear reminder that the litigant and their lawyers must routinely consider whether their dispute is suitable for ADR. It also readdresses the balance in favour of a successful party who has refused to mediate. Halsey now makes it clear that a properly reasoned refusal to mediate on the facts of the case should not affect a successful litigant’s ability to recover costs. The English Court of Appeal decision in Halsey has sparked debate and raised the issue of the cost consequences of a refusal by a successful party to agree to mediation and decided, as previously mentioned, to uphold a court’s right to impose costs on a party who has unreasonably refused consent to mediate. The Court of Appeal took the opportunity of this case to assert that ‘to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court’ and therefore, a violation of article 6. In relation to this statement, the Court of Appeal based its decision on a previous case in which the European Court of Human Rights (ECtHR) said that ‘the right of access to a court may be waived, for example, by means of an arbitration agreement, but such waiver should be subjected to particularly careful review to ensure that the claimant is not subject to constraint’. After Halsey, other decisions in England, as for example Hickman v Blake Lapthorn, confirmed that compulsory ADR was contrary to article 6 ECHR. Many observers at the highest judicial level in England considered that the understanding of article 6 ECHR was misguided. Sir Anthony Clark MR considered that Halsey decision was wrong, and suggested that the courts do have power to order compulsory mediation. He also considered that this part of the Halsey decision was obiter— leaving the door ajar for judges to make compulsory mediation orders. Indeed, at that time, there were already attempts of mandatory mediation in other jurisdictions such as, for example, in Greece and in Germany and this was not seen as a violation of human rights. Moreover article 5 (2) of the Mediation Directive expressly acknowledges that use of mediation can be made compulsory by national legislation ‘before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system’.
Clearly, many legal systems have started to regulate the use of mediation before or during proceedings, with the aim of diverting cases from judicial resolution. In doing so, they have modified the concept of traditional mediation in inserting some elements of coercion into it. The main characteristics of this new approach to mediation remain the same as for voluntary mediation: a dispute, the intervention of a neutral third party and a free agreement between the parties. However there are two main differences, namely the free choice of the mediation process by the parties is altered and mediation is taking place in the context of court litigation, before or during the judicial procedure. If we want to try to define very broadly the trend at this stage, we could say that it covers any measure of coercion exerted over the decision-making of the parties in a court context towards mediation. In England and Wales, it has been promoted as a cost- savings measure for the parties and the government. This then begs the following question. To what extent should non-voluntary mediation be implemented in civil justice systems? For example, in England, through the judicial policy of encouragement, litigants are required at different stages of the proceedings to consider mediation (Pre-action Protocols, Directions Questionnaires). Overall, the classification proposed (information, consideration, and participation) gives a continuum of levels of coercive action devised to increase the use of mediation in the context of court litigation. It can be said that the gathering of these three categories constitutes a form of non-voluntary mediation. The rationale behind non-voluntary mediation has permeated the court apparatus through non-voluntary mediation requiring litigants, either to be aware of, to consider or to participate in mediation as they contemplate the judicial resolution of their dispute.
The policy debate continues on the merits of mandatory mediation, and more specifically on whether it obstructs the right of access to court. There are two clear camps divided in opinion. Some arguing that you cannot force mediation, it should only be voluntary, and that the courts may distort the mediation process in trying to promote mediation. While, others will argue that it is not about forcing mediation, but rather it’s a situation of providing clear directing in order for there to be a greater chance of mediation taking place. Genn believes that ADR would never become part of the mainstream of our litigation/dispute resolution culture unless courts were more actively involved in promoting the use of ADR’. Moreover, some authors argued that ‘experience in numerous jurisdictions around the world suggests that court- referred ADR only begins to develop where it is subject to some degree of mandating’. This idea was also supported by the urgent need to control civil justice expenditure, to reduce backlog in pending cases or/and unbearable costs in litigation. There are nevertheless still today strong opponents to this transformation of the principle of access to justice and the assumption that mediation delivers justice. With detractors emphasizing that this policy is, in fact, a policy directed at diverting disputes away from justice and that the promotion of ADR by governments could be interpreted as less about the positive qualities of mediation and more about diverting cases to mediation as an easier and cheaper option than attempting to fix or invest in dysfunctional systems of adjudication.
England’s legal framework, designed to encourage the use of mediation, is at a turning point between its needs of adjustment and a new online court project where mediation is incorporated within the judicial process. Briggs emphasises the project aims to provide the opportunity to use modern IT to enable civil disputes of modest value and complexity to be justly resolved without the incurring of the disproportionate cost of legal representation. The Online Court (OC) project presented in the Briggs report has relaunched the debate on the implementation of mandatory participation in mediation, highlighting the fundamental issues relating to the general principles that mediation is supposed to be a voluntary recourse in the event of a commercial dispute. Under the current design of the project, litigants will have the obligation, if ‘recommended’ by the Case Officer, to attempt in the first place telephone mediation to resolve their dispute. It is anticipated in the Briggs reports that mediation would become the norm, the OC’s main dispute resolution tool. Therefore, it seems that the OC would require the majority of litigants to attempt telephone mediation before being able to consider judicial resolution, although the project needs to clarify if the decision to mediate will be left at the discretion of the Case Officer. This then raises some worrying issues, in that not only does it affect the concept and the semantic of mediation, but it threatens also the future of out-of-court mediation, and more importantly questions the fundamental issue of access to judicial resolution. Such concerns could call into question the viability of the OC project itself as it is presently designed. This could lead to further consideration on how to modify it and to adapt it to ensure its full success.
I believe there is enough evidence to suggest that in England and Wales mediation has already become a non-voluntary process moving towards juridification. Over the last decade the issue concerning access to justice has been the undoubtable vehicle reshaping dispute resolution process outside the courtrooms as well as their inclusion in many judicial systems
with the aim of making justice accessible to a larger number of litigants at a more sustainable cost. Non-voluntary mediation has participated in this movement. It can therefore, be viewed as the transformation leader of mandatory consideration of mediation into an implied requirement to participate in mediation, through the policy of cost sanctions. Supported by government policy and the judiciary. As mediation expands it will provide new light to the practice of justice in the UK and Wales. The system around access to justice has evolved: the number of ADR organizations, groups and independent practitioners has grown, Bars associations and Law Societies have embraced the movement and in many law firms dispute resolution departments have been added. Even some authors have started to endorse open access to courts for the widest range of disputes: What is certain is that mediation in England and Wales has become itself the major consensual ADR process and that at the same time has inserted coercive mediation processes in their civil justice system. The concept of non-voluntary mediation and the context in which it has emerged and demonstrated that non-voluntary mediation has today become a reality in court litigation systems. If this trend continues, it will be necessary to ensure that all litigants obtain an equal treatment in court. This will require the need to address the question of information of the public on mediation in civil and commercial matters, and more specifically the issue of mandatory mediation information. Greater effort is required to ensure real improvements in encouraging mediation as an accepted process in the minds of those engaging in the process. As research shows that cases are more likely to settle at mediation if the parties enter the process voluntarily rather than being compelled into the process.