Mediation: a threat to access to justice?
Kate Aubrey-Johnson, an accredited mediator, a barrister and author of LAG’s latest publication, Making mediation work for you: a practical handbook, writes:
The coalition government argues that mediation is quicker, cheaper and less confrontational than going to court. This policy is underpinned by its desire to reduce the cost of the civil justice system. So, is mediation cheap justice?
Mediation is more than an assisted settlement negotiation. It is about informed decision-making and participative justice: a structured process during which parties may receive explanations, apologies and expressions of regret which no court process would provide. The less adversarial nature of mediation encourages collaboration and looking beyond the purely legal issues to explore what parties actually want to achieve and are able to build into an agreement. This means that it can achieve settlements which are not available through the courts. Unlike contested litigation, mediation can restore the relationship between the parties (or lay the groundwork for a better way of communicating together).
Mediation’s effectiveness depends on the quality, experience and expertise of the mediator(s). At its best, mediation has the potential to provide a safe space where parties meet face to face, set out their issues, are listened to and guided through a process by a mediator who is able to manage power imbalances and facilitate communication. Mediation encourages parties to generate creative, practical and meaningful agreements. It is unlikely to be effective unless the parties enter it with an open mind: parties and their legal advisers have to prepare thoroughly, be flexible and collaborative.
High quality legal advice is central to ensuring that parties achieve a fair outcome from mediation. Most mediators are facilitative, ie, they do not offer legal advice or any guidance to parties about whether the proposed agreement would be a fair outcome. So, how will a party know what is fair? This is a balance between what the party wishes to achieve, the likely outcome if the matter proceeded to court and the value each party places on bringing to an end the uncertainty of ongoing legal proceedings. To make this assessment, parties need to be advised what the most likely result would be if the matter proceeded to court (as compared with the best possible outcome and the worst-case scenario). Vulnerable parties will need legal representation to make these assessments and to engage collaboratively with another party.
So, what of the litigant in person or the huge areas of work no longer within the scope of legal aid? It is hard to see how parties can enter mediation fairly without knowing the merits of their legal position; it is often the threat of legal proceedings which creates a balance of power to enable mediation to take place and motivates defendants to settle. Mediators need to work hand in hand with the legal community to ensure that this minimum requirement becomes the established norm. This will inevitably place greater pressure on pro bono services, Law Centres® and the advice sector. However, if this safeguard is in place alongside other measures to assist vulnerable litigants, such as attending with a support worker or providing time for reflection before signing any legally binding agreement, mediation may offer them an accessible process which achieves just outcomes.
All solicitors and barristers should understand what mediation has to offer (as well as being aware of its limitations). This will apply to an even greater extent once the changes to conditional fee agreements introduced by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 are brought into force and create greater pressure to keep down legal costs.
Since April 2011, separating couples in private family proceedings have been required under the pre-action protocol to attend mediation information and assessment meetings. In employment tribunals, judicial mediation is offered in complex cases. In civil cases, increasingly costs sanctions are used where the court considers a party has unreasonably refused to mediate. Once leave to appeal is granted, most cases will be referred to the newly relaunched Court of Appeal mediation scheme. By April 2013, under government proposals, small claims up to a value of £5,000 will be referred automatically to the Small Claims Mediation Service. These are all, in essence, requirements to have engaged with a mediator (rather than an obligation to mediate).
Mediation presents a new way of thinking about what outcomes are achievable from the legal process. Mediation can (but may not always) reduce parties’ legal costs, which can so easily escalate and become disproportionate to the damages sought or the issues in dispute. It is often quicker than protracted legal proceedings, and as mediated agreements are agreed by the parties (rather than imposed by a judge) they are less likely to require enforcement. Cuts to legal aid and the fact that mediation may be the only funded option for some individuals should not undervalue what it has to offer.
Ultimately, mediation is voluntary: parties are free to leave at any time. This is perhaps mediation’s greatest strength, and for champions of accessible justice ensures that the individual is not divested of the power of determining their own outcome.
The original article can be found on the LAG website: view article
Kate can be found at Garden Court Mediation