It is because of the
association with reasonableness and compromise mediation receives
widespread support. But mediation simply does not work that was the
conclusion of the most comprehensive and exhaustive three year
research report set up by the Lord Chancellor's Department and
completed in December 2000.
According to the
Lord Chief Justice at the time, Lord Justice Woolf, court appointed
mediation was supposed to 'change the landscape' for civil
litigation;
1. Litigation will
be avoided wherever possible. 2. Litigation will be less adversarial
and more co-operative. 3. Litigation will be less complex. 4.
The
time scale of litigation will be shorter and more certain. 5. The
cost of litigation will be more affordable, more predictable, and
more proportionate to the value and complexity of individual cases.
6. Parties of limited financial means will be able to conduct
litigation on a more equal footing. 7. There will be clear lines of
judicial and administrative responsibility for the civil justice
system. 8. The structure of the courts and the deployment of judges
will be designed to meet the needs of litigants. 9. Judges will be
deployed effectively so that they can manage litigation in accordance
with the new rules and protocols. 10. The civil justice system will
be more responsive to the needs of litigants.
But the research
into mediation showed;
30.5 Accordingly
there is little prospect of mediation replacing lawyers – or
certainly not of its replacing them effectively. That is not to say
that mediators cannot provide a valuable service to some couples, but
unfortunately the policy debate has tended to focus upon diversion
from legal services. Our evidence suggests that in order to have a
significant impact upon the volume of legal activity, and upon legal
costs, these matters have to be tackled directly
31.3 Mediation may
prove to be a cost-effective option in resolving some disputes, at a
particular point. It can only achieve this where both parties commit
themselves to the process. In other circumstances mediation is likely
to prove an additional cost.
31.4 This calls for
good case selection and, secondly, for a system of referral which
secures the engagement of both parties. Timing is
critical. There is
plentiful evidence, in the UK and abroad, that mandatory referral to
mediation which follows immediately upon the parties seeking legal
help is not effective as a means of securing legal settlement.
Equally there is evidence that court-sponsored mediation which
follows earlier attempts to negotiate on a bi-partisan basis can
indeed ‘work’ in these terms.
31.6 A second
strategy might be to promote mediation as a genuine alternative to
litigation. Separating couples might be informed of its existence,
and its potential benefits. One could conceive of a number of
potential ‘information points’, without requiring people to
attend a special meeting for this purpose. Mediation on this level
would be judged by its ability to provide a service which people
value. Government sponsorship is compatible with this, but it would
be unrealistic to expect these services to have much impact upon the
demand for lawyer advice, negotiation and representation. Mediation
would be supported as a separate, parallel system, with its own
distinctive and worthwhile features.
Despite the
ineffectiveness of mediation it still continues to receive UK
Government support, because of the association with reasonableness
and compromise, as well as the belief that spiraling legal costs will
be reduced.
The Children and Families Act 2014 made mediation compulsory for applicants, usually fathers. Also judges and magistrates now act as 'gatekeepers' under the new law deciding whether fathers have met the necessary threshold of mediation before they can make an application to the Family Court to see their child or children. These new measures have more to do with reducing spiraling legal costs than reasonableness and compromise.