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Making Mediation Mandatory

Whilst the Court currently encourages parties to consider mediation it does not compel the parties to engage in such a process. However, the master of the rolls has revealed that the Civil Justice Counsel is looking at the extent to which mediation should be made compulsory as a way of keeping more disputes out of court. 

Around the world mediation has been embedded into the legal process in many countries including Italy (for certain types of civil and commercial disputes), USA, China and in India where Alternative Dispute Resolution (ADR) is required before cases can proceed to court.  It seems clear that globally mediation is seen as a method for managing the backlog of court cases and resolving disputes effectively.

Some may argue that in England and Wales mediation is already compulsory in all but name and it is certainly true that more parties are mediating than ever before.  It is widely accepted that most disputes have areas of weakness on both sides which can be grounds for considering and agreeing a resolution.  The recent changes to cost budgeting and case management are forcing parties to face the realities of a long, drawn-out litigation process at an early stage and encouraging parties who may once have felt they wanted their “day in court” to come to the table and consider a sensible settlement.  

The issue of mandatory mediation was last considered in 2018 at which time the Civil Justice Counsel stopped short of recommending a presumption that parties would agree to mediation (or some other form of ADR) as a condition to the issuing of proceedings. 

If changes are made, whether mandatory mediation will take the form parties currently understand by attending a mediation or instead be a more targeted, repetitive intervention before cases come to court remains to be seen but, whilst this is on the agenda, it seems that the court will remain keener than ever to see that parties have voluntarily considered and, where appropriate, attended mediation before a case reaches the trial stage in court.

Posted on 1 April, 2021 by Ortolan

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