There is every likelihood that the Ministry of Justice review into mediation will result in some form of compulsion on parties to engage in mediation or some form of equivalent alternative dispute resolution. Unity is a big supporter of mediation, as was obvious from the impassioned speech by our head of mediation, Anthony Trace Q.C, at the Unity conference back in October. However, we have to recognise that there are, albeit very rare, cases in which it is unsuitable (such as cases of fraud and conspiracy which turn on intricate conflicts of factual testimony), but it does seem to us that a major barrier to compulsory mediation is cost. Can or should the State dictate that parties take a particular course at their own expense and, if they fail to do so, they can no longer access the courts to have their day in court?
It seems to us very unlikely that the government would be willing to finance a no cost mediation service and, if they did, would it end up like the county court mediation service and be regarded as second best? It may be that the answer is for the Rules to require the parties to have mediated at some stage before the stage of pre-trial questionnaires or to certify that they themselves have entered into meaningful negotiations.
Solicitors give all sort of excuses why their clients should not mediate a dispute, commonly that the other side are aggressive and negative so that the mediation will not work or that the lawyers can do a good job without third party assistance. These are not good reasons not to mediate. The skill of the mediator is to open the eyes of the lay clients (and sometimes their lawyers) to see the potential risks of going to court and the weaknesses in their case, to which they had not really addressed their mind before. To put it another way, mediators can demonstrate home truths in a way a solicitor cannot. Mediators can also be creative, finding workable solutions which had not occurred to the parties. These are powerful reasons to use the services of a skillful and diligent mediator.
If a party can afford the cost of mediation which could easily be £10,000 or more including the cost of the lawyers attending, then solicitors should advise their client to pay the money. Not to mediate may be a false economy. The vast majority of mediations do settle so that will be the end of the use of financial resources for the case. If there is no mediation, the costs will continue to escalate all the way to a very expensive trial with no certainty as to the outcome.
Anthony Trace Q.C. and Roger Billins