Is mediation before court action a complete waste of time?

Posted on April 06, 2017 by Jeremy Frost

There is an expectation on the part of the court that parties should have tried to find a settlement before going to court, using some form of alternative dispute resolution (ADR).

In specific types of cases where a pre-action protocol has been set, ADR is a requirement. There is not, as yet, a specific debt pre-action protocol, but there is one in development.

If a case does get to court and the parties haven’t undertaken any form of ADR, which would include mediation, the judge is likely to tell them to try that first.

A good idea in principle, but I do find myself questioning why, if it has not been tried before, the parties and their legal representatives would now be falling over themselves to settle the dispute?

Why judges like mediation more than lawyers

Unless they are also mediators, lawyers don’t tend to benefit from their clients using mediation, so not surprisingly it will not be high on their list of approaches to take.

Similarly, there are some in the legal profession, and more so in the client’s pool who believe that the mere act of suggesting mediation is showing a weakness in the case with to do so simply hastening the entry into the court process.

However, claimants are over-reliant on a court system going through a massive amount of change, especially for small claims. Put simply, the court system cannot cope with the current volume of civil cases.

This is exacerbated by the ongoing programme of court closures and the rise in the number of people taking their own case to court – litigants in person, which often requires more court time as the claimant often needs hand-holding through the process.

As a result of these constraints, the current system pushes cases back because there isn’t time to hear them properly - for example by sending the parties off to undertake mediation - this defers the eventual resolution, which is not good for either party.

Litigants in person can also be more intransigent; they often can’t afford to lose but they can’t afford to win either, which can make it hard to get them to accept the compromise that comes with mediation, but it is likely to benefit them more overall than going to court.

How to make mediation a more positive approach?

So how can we make mediation a more positive approach, one that is seen to be beneficial to the parties and the lawyers?

If business organisations such as the Institute of Directors and the Chambers of Commerce were to support and/or provide mediation services, this would make it more of a “pull” approach rather than the current court “push”.

At Frost Group, we are encouraging business organisations to invest in this business model. Statistics show that 80% of cases that go to mediation are settled, which is impressive, even allowing for the near 100% settlement rate of matrimonial cases.

There are still some cases that should be heard in court but this is for the minority, not all the ones that are currently clogging up our court system.

Mediation should be seen as the first port of call, not because a judge or pre-action protocol instructs it, but because the parties see it as a constructive process that should lead to a settlement.