Mediation is frequently seen as a ‘hurdle to jump’ or a sign of admission or weakness, according to a survey conducted by the government.

The Ministry of Justice this week published a summary of responses to a call for evidence last October on attitudes to different dispute resolution processes.

Those polled or interviewed were asked about drivers or barriers and about the quality and outcomes of the schemes used.

The MoJ reported that a ‘high proportion’ of respondents said that parties were not aware of dispute resolution processes and cited a lack of publicly available information to fix this. This was the view of lawyers, mediators, academics and representative bodies.

They asked for greater public education and for government to take a central role in this, particularly when it came to helping litigants in person.

But the evidence call also highlighted a number of misconceptions and beliefs around dispute resolution stopping people from accessing it or taking it seriously.

Mediation was viewed by many as a token step along the inevitable road to court, and was not seen as a serious route to a solution.

Others dismissed mediation in family cases as an attempt to put relationships back together, or in general as a ‘form of capitulation’ which signalled admission or weakness.

Mediators’ impartiality and independence was questioned, as well as their ability to give advice or impose a decision.

The MoJ said: ‘The theme which respondents often viewed as tying these barriers together was the strong association made by parties between the notion of court and justice and ingrained beliefs regarding the need to have one’s ‘day in court’.’

The summary of responses said that while many respondents were keen to engage in dispute resolution to save money, in some cases the value of a dispute and ‘relatively cheap court fees’ compared with the cost of alternatives was another barrier.

Meanwhile costs sanctions, provided for under court procedure rules, for unreasonable refusals to engage in dispute resolution were seen as a highly effective and under-used tool, especially in commercial cases. Although respondents cautioned that this did risk parties engaging without any genuine intention of achieving a settlement.

Some respondents felt that, despite court protocols recommending that solicitors make an early referral to mediation, owing to their vested interests in pursuing lengthy litigation, referrals of clients by solicitors did not regularly take place. The ‘adversarial language’ used by lawyers was also viewed by some to aggravate tensions between parties and provide an additional barrier to engagement with dispute resolution.

The MoJ made no specific proposals off the back of the call for evidence but said the consultation will inform its work on how to use dispute resolution processes to deliver ‘swifter, more cost-effective and more consensual access to justice’.

 

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