The landmark Court of Appeal decision in Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 overturned the long-standing prohibition on English courts compelling parties to engage in mediation or other ADR (Alternative Dispute Resolution) processes.

Recent court rules have introduced mandatory mediation as a standard procedural step in majority of Small Claims Track civil cases (quantified sum, claims valued below £10,000). This will extend later to other Small Claims cases such as unquantified money claims and personal injury claims and eventually across the entire civil justice system including Fast Track (value of £10,000 - £25,000) and multi-track (over £25,000).

In this article, Waj Hussain examines the unintended consequences that could arise from mandatory court-ordered mediation.

In recent years, mandatory mediation has become a cornerstone of judicial reform, aiming to alleviate backlogged court listings and promote more amicable dispute resolutions.

While the concept of mandatory mediation holds great promise for fostering cooperation and efficiency, it also brings to light several unintended consequences. These issues range from shifting backlogs to mediation services, exacerbating conflicts when mediations fail, and increasing administrative burdens on the judicial system.

Shifting backlogs to mediation services

One of the main goals of mandatory mediation is to reduce the court case backlogs.

However, this approach can shift the burden from the courts to the court-run mediation service.

With mandatory mediation, the demand for mediators will skyrocket, leading to potential delays of weeks or months before sessions can be scheduled. Such delays can prolong the dispute resolution process rather than expedite it, counteracting the intended benefits of mandatory mediation.

Increased demand may also strain the pool of qualified mediators. The government has acknowledged that mandatory mediation for all County Court claims might require referrals to private-sector mediators, who may charge fees. This could involve inexperienced or insufficiently trained mediators handling complex disputes, potentially leading to ineffective outcomes and undermining confidence in the mediation process, ultimately resulting in more cases returning to court.

Worsening relationships between parties to failed mediation

While mediation aims to foster amicable resolutions, mandatory participation can have the opposite effect when mediations fail.

Parties compelled to mediate may enter the process with reluctance or hostility. If the mediation does not lead to a settlement, the relationship between the disputing parties can deteriorate further, especially in cases involving personal relationships, such as family disputes or small business conflicts. This can leave parties more entrenched and adversarial, leading to a more acrimonious court battle.

Parties may find themselves going through a protracted process with multiple stages, each requiring time and resources, ultimately delaying the final resolution of their disputes.

Courts becoming the preserve of the rich

Parties will be required to attend a 1-hour free telephone mediation session with a court-employed mediator. There will be no direct conversations between the parties, as the mediator will act as an intermediary. While the mediation itself may be free, other indirect costs can still pose significant barriers for less affluent parties.

Effective mediation often requires legal representation, which can be expensive. Wealthier parties can afford better legal advice and representation, potentially giving them an advantage in mediation. They will also have their legal representatives attend the mediation session. In contrast, the time commitment required for mediation, including preparation and attendance, can be burdensome for those with less flexible work schedules or for those having to take unpaid leave.

When mediation fails, the cost and time of litigation remain. This can introduce delays and force less wealthy parties to take more time off work. Even with free mediation, the overall cost of seeking justice remains skewed in favour of the rich.

Increased administrative burden on the courts

Implementing mandatory mediation adds an additional step in the legal process, which can paradoxically increase the administrative workload for the court system.

The requirement to process and monitor mediation outcomes creates more work for His Majesty's Courts and Tribunals Service (HMCTS). This can offset any time and resource savings achieved by diverting cases from trial. Courts may need additional resources, including staff time and paperwork and to invest in new systems and processes to handle the added workload, further stretching limited resources.

Compliance and enforcement issues

Settlements reached through mandatory mediation may suffer from lower levels of compliance and enforcement.

While the majority of participants in the mediation scheme will adhere to settlements arising from the mediation, it is important to remember that mediated settlement agreements, even in court-mandated cases, are not themselves court Orders. Some parties may therefore choose to ignore or delay matters by adopting a relaxed approach to any deadlines or conditions agreed. This can reduce the effectiveness of mediation and lead to additional legal battles to enforce or modify the agreement, further burdening the parties with additional time and costs, and negating the intended efficiency of the mediation process.

Conclusion

As mandatory mediation is increasingly implemented to streamline the judicial process and foster quicker, more amicable resolutions, it can lead to several unintended consequences.

These include introducing more delays in the court process, making court access a privilege for the wealthy, shifting case backlogs to mediation services, worsening relationships between parties after failed mediations, and increasing the administrative burden on the court system (although this could be offset by claims settling before going to trial).

To truly benefit from mediation, it is crucial to understand these challenges and ensure that mediation serves its purpose, without undermining access to justice and the overall effectiveness of the legal system.

Author:  by Waj Hussain