Persuasion and Compulsion
| Author | Stephen Walker/David Smith |
| Pages | 27-43 |
3.1 Introduction
In the working definition of mediation in Chapter 1, mediation is said to be a voluntary process. In this chapter, we discuss how voluntary it is, both in theory and in practice.
3.2 Mediation theory
Mediation is not compulsory in the UK. At the current time, no one is forced to go to mediation with a limited exception under the Children and Families Act 2014 in relation to appeals to the First-tier Tribunal about a decision on an education, health and care plan. In R(UNISON) v Lord Chancellor [2017] UKSC 51 at [68], the Supreme Court re-affirmed the existence of a right of access to the courts and stated that ‘people must in principle have unimpeded access to them’. The former president of the Supreme Court in his time as Master of the Rolls clearly stated his view that compulsory mediation would undermine this right (Lord Neuberger of Abbotsbury MR, The Gordon Slynn Memorial Lecture 2010, ‘Has mediation had its day?’, 10 November 2010). Additionally, it is uncertain whether it would be a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) to make it so. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 at [9], the former Master of the Rolls, Dyson LJ, said:
It is one thing to encourage the parties to agree to mediation, even to encourage them in the strongest terms. It is another to order them to do so. It seems to us 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.
3.2.1 Article 6 of the ECHR
Not everyone agrees with the Master of the Rolls on whether compulsory mediation would be a breach of Article 6 of the ECHR. It is true that the European Court of Human Rights (ECtHR) has said in relation to Article 6 that the right of access to a court may be waived, for example by
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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’ (see Deweer v Belgium (1980) 2 EHRR 439 at para 49). If that is the approach of the ECtHR to an agreement to arbitrate, it could well be argued that compulsion of ADR would be regarded as an unacceptable constraint on the right of access to the court and, therefore, a violation of Article 6. However, Italy has introduced a mediation process which has been widely described as mandatory (although this was challenged in the Constitutional Court, which ruled that the government had exceeded its legislative authority in making mediation mandatory), as have a number of Eastern European countries.
In a more recent decision, Sir Alan Ward, one of the judges who decided Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 in the Court of Appeal, questioned his own decision in that case in respect of mediation compulsion. He went so far as to suggest that the statement that compulsory mediation was an ‘unacceptable obstruction’ on access to the court might have been obiter. He expressed the belief that compulsory, court-imposed, stays for mediation might well be acceptable, and suggested that it might be appropriate for the matter to be reconsidered by a senior court (see Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234 at [3]). It is clear, however, from the Supreme Court decision in the UNISON case (para 3.2) that any restriction on access to the courts is one of great importance and cannot be permitted by any other means than the clearest statement in primary legislation by Parliament (at [87]). Therefore, any further attempt to compel parties to mediate would seem to require direct parliamentary involvement.
Going to mediation does not prevent a disputant from going to court. Many people have already started the process that will lead them to a trial before they go to mediation. If they do not settle their dispute, they can still take it to trial, provided of course that they can afford it.
Requiring people to attend a mediation before they can take their case to trial is an additional step along the way. So are the Pre-Action Protocols, which have also front-loaded the expense of going to trial. The new regime for costs budgets in multi-track cases, which came into force in April 2013, make the relative cost of mediation as against trial very obvious to clients, and to some extent drive their decision-making process. Neither of these is regarded by the judiciary as undermining the fundamental right of access to the courts. But do they?
It is sometimes said that one of the hallmarks, and indeed selling points, of mediation is its voluntary nature. Undermining this would risk undermining a key component of what actually makes mediation work. One must ask, however, how voluntary is mediation? Once proceedings
have started, how much choice in reality do the parties have as to whether or not to go to mediation?
3.2.2 The Civil Justice Council Working Party
Although the Handbook said at para 9.11, ‘The courts are not prepared to compel parties to engage in an ADR process if they are unwilling to do so. However, that may change in the future’, so far it has not and the signs are that it will not.
In January 2016, the Civil Justice Council resolved to form a Working Party, chaired by Bill Wood QC, a leading international mediator, to review the ways in which ADR is at present encouraged and positioned within the civil justice system in England and Wales. It published an interim report in October 2017 and its final report in December 2018. The final report is available at:
www.judiciary.uk/wp-content/uploads/2018/12/CJC-ADRWG-Report-FINAL-Dec-2018.pdf.
The key terms of reference for the group were:
• To review existing forms of encouragement for mediation in civil cases.
• To consider alternative approaches to encourage the use of mediation in civil disputes.
• To assess proposals for reforms to the rules or for initiatives that might be taken outside the formal rules.
The Working Party received a number of submissions and held a well-attended workshop after producing its interim report. Interestingly, the final report rejected the idea that mediation compulsion was a worthy goal and concluded that the appropriate response was a three-stage approach to:
1. Create awareness of ADR among the public, legal professionals, and judges;
2. Make sure that good quality, affordable ADR was available to those who sought it;
3. Encourage the use of ADR in disputes.
The final report made a number of recommendations. While it rejected the idea of mediation compulsion, it also stated that there was still too much generosity to those who refused ADR offers and was clear that there should be a much stronger presumption that ADR would be attempted at an early stage. While the report rejected any form of compulsory meeting
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about ADR along the lines of the Mediation Information and Assessment Meetings found in the family courts, it was keen on claim forms requiring parties to certify that they had attempted to make contact to achieve settlement prior to issue. The report also recommended a new ADR liaison committee involving members of the judiciary and the ADR community be set up in order to continue the Working Party’s work and to push wider adoption of ADR. It is clear from this that while compulsion in mediation is unlikely, the pressure to mediate will intensify and there will be ongoing work to encourage its use.
3.3 Mediation practice
3.3.1 CPR and mediation directions
As well as the general pressure to mediate, there are now a number of practice directions and court rules which require that consideration is given to the use of ADR at an early stage.
The CPR Practice Direction – Pre-Action Conduct, which applies where no other practice direction or protocol is required, states that one of its aims is to ‘enable parties to settle the issue between them without the need to start proceedings’ (para 1.1(1)) and it goes on to state that this aim is to be achieved in part by encouraging the parties to consider using a form of ADR (para 1.2(2)). The practice direction specifically states that unreasonable refusal to consider ADR is an example of non-compliance (para 4.4(3)). It also requires that the initial letter of claim should set out the form of ADR that a claimant deems most suitable and seek the defendant’s consent.
3.3.2 Costs compulsion
Despite the various rules changes, the key element in compulsion to mediate is litigation costs. This has been used for a long time as a means of compelling appropriate litigation behaviour and is an increasing driver towards encouraging settlement and efficient use of...
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