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Compulsory mediation could work for low-value disputes, mediators say

19th Oct 2016

Compulsory mediation could work for low-value disputes, mediators have said.

One of the greatest incentives of mediation is that clients can take control of their situation in the company of a neutral mediator. Commercial litigator and mediator Stephen Walker called for mediation to be made compulsory, stating that “Most people don’t want to go to court but have no choice. Many cannot afford it. Mediation is much cheaper.”

Having parties sit down and discuss their matter over a day could see it resolved quicker, cheaper, and with less stress than if the case reached court.

The Centre for Effective Dispute Resolution (CEDR) estimated that the mediation market sits at approximately £10.5bn. In the twelve months around 10,000 cases went through mediation – an increase of 5.2% on 2014.

Graham Ross, a lawyer, mediator, and member of the Civil Justice Council’s ODR Advisory Group, said: “You can’t force people to agree anything obviously but I can’t see why, if they’re going to have the benefit of a highly experienced judge, then before they enjoy that privilege they should at least spend time with a mediator.”

Camilla Palmer, CEO and principal solicitor at Your Employment Settlement Service (YESS), supports mediation, but believes it should only be ordered if the parties agree and can afford the costs.

“Forcing mediation on a reluctant party is unlikely to result in settlement,” she said. “Commercial mediation costs are too high for most employees and for small businesses so funding would be required for those on low incomes.”

YESS was set up in 2014 with the aim of resolving employment disputes without litigation by providing affordable legal advice to employees and employers. Unlike mediation – which it offers as a separate service – the charity gives tailored advice and guidance to clients rather than being an impartial mediator.

Palmer believes engagement with resolution should be mandatory where mediation is one option, but acknowledges that “early discussion between the parties may make mediation superfluous”.

Regarding the introduction of compulsory mediation, Helen Curtis, a barrister and mediator at Garden Court, said: “Lawyers would need to ensure their clients had the best mediation experience possible – which would have the advantage of clients recommending them and the prospect of repeat business. Some more education is needed for lawyers to perceive mediation as an opportunity rather than a threat.”