Author: Charles Gordon
Mediation is a legal success story. Its use has become widespread, particularly in Common Law jurisdictions, but increasingly in countries using Civil Law. While there are of course variations from country to country and in different fields of law, the private mediation model is now very familiar. Countries regulate the process, and indeed mediators, to a greater or lesser extent. There are also real differences in the extent to which laws and the judicial process encourage and facilitate mediation and impose penalties on parties who do not warmly embrace mediation. As to enforcement of mediated settlements, we now have the Singapore Convention on Mediation. Although some major jurisdictions are yet to join this, the UK Government has just concluded that this is the “right time for the UK to become a Party to the Singapore Convention as a clear signal that the UK is committed to maintaining and strengthening mediation and the dispute resolution sector.”
What is less widely appreciated is the extent to which compulsory mediation (with attendant regulation and, frequently, state funding) together with the role of judges as mediators, is now a significant feature in many countries.
I recently took part in IPOS organised training for judges in the use of mediation in The Cayman Islands, following the introduction of a Practice Direction (PD) on Judicial Mediation Guidelines. This PD provides for cases to be referred by the Court to judicial mediation at any stage in proceedings. The motivation for this development appears to be in part to simply encourage the general use of mediation in Cayman, where previously it has been slow to develop outside of Family and Workplace disputes. It remains to be seen whether there will be significant use of judicial mediation in Cayman. Some have suggested that a court ordered mediation may be a tool to encourage reluctant off-shore parties to engage!
Having been asked to take part in this training, it got me wondering about the role of judicial mediation, and judges’ wider involvement in mediation, in other parts of the world. Some research soon brought home to me how widespread such mediation already is, and in some surprising places. Even in the UK, forms of judicial mediation and dispute resolution outside the trial forum are now well established in Family Finance cases, Employment Tribunals, and the Chancery Division. Compulsory mediation for small claims is very likely to be introduced in the near future. These developments are not intended to supplant or rival private mediation and parties will often be encouraged to pursue private mediation as an alternative, quicker, and more flexible process.
Looking at other jurisdictions, I admit to being surprised at the extensive and common place role of judges directly in mediation in Canada, the USA, and Australia. Many of these jurisdictions have embedded mediation within their Civil Justice Codes. Naturally, each bench has both judges who espouse mediation enthusiastically and those more reticent to combine their judicial adjudication role with the skills needed to mediate settlements. However, through its increased use, the benefits of judicial mediation are becoming apparent: including reducing the size of judges’ dockets, saving court time and public money, and also improving access to justice for parties without the deeper pockets needed to pay for private mediation.
I also found a very well developed system of judicial mediation in Germany, a country where private mediation has had limited success. In the European Union not only has the well-established Mediation Directive been adopted, but there is an initiative, launched in 2014, called Mediation Meets Judges. This initiative focuses on the promotion of mediation in civil and commercial disputes and encourages judicial referral of disputes to mediation by providing judges with direct understanding of mediation and the practical tools to be used when referring parties to mediation. They have produced a “European Toolkit for Court annexed mediation schemes”, a “Mediation case diagnosis for judges” and a “Letter template for the judge to inform parties about mediation”.
I have not yet been able to study Asian countries in respect of judicial mediation, save for Singapore where judges have also embraced the concept.
What does all this tell us about the likely direction of mediation across the world? In my view, it indicates that privately appointed mediators have led the way in demonstrating the clear benefits of mediation and ADR generally. They will continue to be the benchmark against which other schemes will be measured and the settlement techniques pioneered by private mediators will continue to enrich the mediation landscape generally. However, we are now seeing a range of new mediation mechanisms growing and flourishing-from voluntary and compulsory schemes applicable to particular categories of case or sector, to judicial mediation where private mediation has not been tried or perhaps has been unsuccessful.
Charles is a mediator and arbitrator with IPOS Mediation, covering a broad range of disputes including insurance and reinsurance, energy, professional negligence, property, shareholder and joint venture disputes.