A Role for Mediation in the Litigation Process

Another one from John Webb:
I came across a very interesting and prescient report by the Civil Justice Council the other day. Called ‘Access to Justice for Litigants-in-Person or Self-Represented Litigants’ and published in November 2011, it highlights concerns about the impact impending cuts to Legal Aid (now implemented) would have on the ability of the public to access civil justice. I won’t paraphrase the authors’ conclusions, which are both disturbingly accurate and borne out by evidence over the intervening years, but I will share the report’s comments on the role of mediation in the litigation process. I agree with them all:
“Chapter 14 Mediation
 
189. Mediation has an important place in any modern system of dispute resolution and access to justice.
190. However, whilst a mediated resolution may prove an alternative to a court adjudication, the provision of mediation facilities is not an alternative to the provision of access to the courts.
191. In the context of self-represented litigants:
(1) Good early advice on the merits is as relevant here as elsewhere. It is harder for mediation to succeed where one party has no legal advice (whether before or at the mediation). The mediator cannot fill the gap.
(2) “Unless [a mediation] is very professionally conducted, there is plenty of scope for the strong to bully the weak into agreeing a solution which is against their best interests”. For that or other reason, including fear and tiredness, the self-represented litigant may be too ready to take a poor deal rather than face court. In these circumstances professionalism in mediators is crucial.
(3) Alternative forms of dispute resolution, like mediation, depend on a functioning justice system in order to bring reluctant parties to the negotiating table. In the end only the Courts and tribunals can require a just outcome.
192. Provided all the points are kept in mind, including those just mentioned, there is every reason to encourage the awareness of mediation, including its availability pro bono, and its use. For many self-represented litigants or potential litigants, there is a desire
not to be in court, or to face the adverse costs risks of litigation. For these, mediation can provide an opportunity to be heard and reach a compromise. And sometimes the opportunity through mediation will be more satisfactory than the opportunity without even that structure or process. Mediation has the advantage that the mediator can take as a starting point the proposition that all parties have a problem because of the issues, and the question for all is what to do about that. Though not an adjudicator or fact finder, a mediator can begin with an inquisitorial approach to help identify the issues.”
 
See the full report here: