Mediation - not so alternative dispute resolution

Authored by ARAG

Like so many aspects of the law, indeed of life, the increasing use of mediation to resolve legal disputes is a trend that has been accelerated by the pandemic, out of necessity.

Long-established and recognised by the courts for decades, the use of mediation in the UK legal system has grown steadily since the 1990s. Its success as a means of alternative dispute resolution (ADR) resulted in it becoming mandatory to at least consider mediation, in some forms of legal action.

For example, while mediation isn’t compulsory in family law cases, since 2014, anyone seeking to initiate proceedings must attend a Mediation Information and Assessment Meeting (MIAM) unless an exemption applies, such as in cases where there has been domestic abuse.

Most employment tribunal cases have, also since 2014, required the claimant to submit an Early Conciliation Form to ACAS. Again, the Early Conciliation service offered by ACAS is not itself compulsory, but it generally isn’t possible to submit an ET1 form to initiate an employment tribunal claim, without having at least considered the ACAS scheme.

While there has been plenty of debate about making some form of ADR compulsory before a case can be brought before a court or tribunal, the most common argument against the idea is that to do so would undermine the voluntary nature of mediation. The process only works because both parties participate freely and of their own volition.

Just because it may not be compulsory, does not mean that courts have a ‘take it or leave it’ attitude to ADR. Judges can take a dim view where one party has proposed mediation, but the other has refused without apparent good reason.

ARAG has encouraged our policyholders to explore mediation as a means of resolving their legal dispute since we started business in the UK, back in 2006. From contract claims to neighbour disputes, our experience has been extremely positive.

If it’s apparent success in resolving disputes were not enough to persuade parties to at least try the alternative route, then the huge backlogs in our court systems should add a further incentive. The time it takes various types of case to reach a UK court has been growing for many years.

The ‘austerity’ decade from 2010 saw the Ministry of Justice (MoJ) forced to cut budgets for everything from policing to prisons and spending on the courts was significantly reduced. Over that period before the pandemic, when caseloads were rising, the total number of HMCTS staff dropped by more than 20 per cent.

Over the same decade, while many court and tribunal buildings were closed and sold off, the number of judges and non-legal members employed to hear cases was also cut by more than 10 per cent.

The justice minister, James Cartlidge, recently revealed plans to recruit more than 2,000 judges and 4,000 magistrates but also published a list of 244 courts and tribunals that have been closed since 2010, in response to a question in parliament. The list, which does not include services that have been ‘merged’ into other HMCTS locations, still represents more than a quarter of such buildings.

The resulting backlogs have inevitably been exacerbated by the lockdowns of the past two years. While the situation has improved to some extent, we have seen examples of claimants having to wait considerably more than a year for a court or tribunal date.

Mediation is rapidly becoming less and less the ‘alternative’ and more the preferable means of resolving legal disputes. It’s not suitable in all cases, of course, but many claims can be resolved more easily, more amicably and certainly much more swiftly through mediation.