Lawyers from different parts of the profession have warned rule-makers to be cautious about any attempts to impose mediation on parties, and warned against punishing those who opt not to mediate.
Responses from both the Association of Personal Injury Lawyers and the City of London Law Society outlined a range of problems with the principles of mandating the use of mediation.
The issue is being discussed by the Civil Justice Council, which is consulting on the issue until this month. There is a feeling that mediation has yet to become culturally accepted in the legal profession and the organisation is looking at ways to change this.
In its response, APIL said alternative dispute resolution can be a useful option to settle cases, and parties should keep an open mind to it as an option. But with most claims already being kept out of court – APIL pointed out that only 15% of claims registered ever reach the county court and it questioned the need for wholesale reform.
‘Alternative dispute resolution is certainly beneficial in some cases, and can lead to earlier settlement, but it is not appropriate for ADR to be mandatory at any stage of a personal injury claim,’ said APIL president Brett Dixon. ‘Not every case is suitable for ADR. To make it a condition that in order to issue court proceedings you must have tried a method of ADR could be problematic if a claimant solicitor is instructed just before limitation, for example.’
The APIL response added that increasing costs sanctions will effectively make mediation compulsory ‘through the back door’, with the court already exercising the power to ask parties to set out reasons why they are not engaging in ADR.
The City of London Law Society said more information could be provided to litigants in person about the option of mediation, and there was benefit in removing any lingering sense that suggesting mediation to the other side was a sign of weakness.
But the CLLS litigation committee was opposed to compulsory mediation in any proceedings, whether as a condition to the issue of a claim form or subsequently. ‘The committee’s experience is that mediation is effective when the parties have voluntarily chosen to participate because they genuinely want to resolve their dispute,’ said the response.
On costs sanctions for refusal, it added: ‘There may be circumstances in which a refusal to mediate will be unreasonable, but the mere fact of wanting the court to decide the merits of a claim is not, of itself, unreasonable.’