Mediation: not just an American fascination

Like counselling, psychotherapy or life coaching, mediation as a means of settling legal battles has been more of an American phenomenon.

For some reason Americans have more fully embraced what UK residents sometimes see as self indulgent nonsense. Is it that Britons aren’t as comfortable expressing their feelings? Or is mediation just misunderstood?

There’s a stronger argument for the latter. Some lawyers, for example, see mediation as a sign of weakness – even with mounting evidence to show it can benefit both parties. There’s also the argument that mediation is irrelevant in personal injury cases because most of these cases are settled before court. But most PI cases still take a long time to settle, and usually only wind up just before they go to court.

More and more, it’s becoming clear that mediation makes sense. Many lawyers are growing frustrated with the traditional justice system, which at times seems time-consuming, conservative and expensive.

By comparison, mediation can keep costs down and settle cases quickly. And by allowing the parties to meet face to face, it humanises the process, often giving both sides better perspective. The claimant – particularly those in personal injury cases – gets a chance to have their voice heard, while the defendant gains more control over costs and gets a chance to test the strength of the claimant’s case.

Mediation, which is also referred to as a form of alternative dispute resolution (ADR), is high on the agenda of the Civil Justice Committee (CJC). At a meeting last month, the CJC made it clear they support ADR and concentrated on how it might be improved.

“Whilst there are inevitably differences within the judiciary and practitioners as to the analysis of the manner and circumstances in which ADR should be used, there is a clear and firm recognition by us (and we believe by the profession in general) of the values of ADR as a significant tool in the dispute resolution process,” it said.

“The discussion to be had therefore is about the stage at which it should be employed, whether consideration of the process should be imposed by the judiciary or requested by one or more of the participants, and whether it should be obligatory.”

The CJC believes that mediation – as opposed to negotiation, which occurs at all stages of the litigation process – should be available at any stage if called for by either party. It also believes there should be judicial involvement so that the process is addressed even if the parties do not independently elect to use it themselves.

So, love it or loathe it, it looks like mediation is here to stay. What form it takes and how it might be enforced remains to be seen.