Mandatory mediation - can it ever work?
The Italians say a resounding "yes". I suspect the UK legal community is more sceptical. In June the Italian Ministry of Justice approved a decree reversing a ruling made in October 2012, which stated that mandatory mediation was unconstitutional. Thus mediation is now mandatory in Italian civil disputes.
The driver, as ever, is cost. Over 200,000 civil disputes are expected to be settled annually, consequently withdrawing low-value cases (generally-speaking) from the Italian courts. An efficiency drive is no bad thing, of course, and the Ministry tempers the mandatory element by making the withdrawal painless and at nominal cost. Thus the process is low-risk and there really is "nothing to lose". But could this arrangement ever work in the UK?
Strong feelings about mediation abound, and sceptics and optimists alike exist. I like the fact that mediation is flexible, and comes in different forms (facilitative, evaluative etc), and can be tailored to the parties' needs. The UK Courts are firmly in favour of facilitative mediation and have penalised on costs parties who have refused to consider it meaningfully. It is also low-cost and low-risk.
Add to all these factors a court system experiencing administrative budget cuts and increased litigation costs, and mandatory mediation may seem the obvious solution. But I struggle with the concept: "mandatory" means "obligatory" and "mediation" resonates with "consensus". How could these 2 concepts bunk up happily? The only way in which I see mandatory mediation could work in practice is if it were steered by a really good mediator, supported by a solid mediation process, at low cost. In other words, a forum to inspire the parties to have an honest attempt at mediation and to reduce the chance of the process being "strategic", as can happen.
I am a firm believer in the power of mediation to succeed where other methods of dispute resolution have not. Clearly, there are complex cases where it is not suitable, and cases where points of principle require a "black and white" answer which can only be given by a decision-making tribunal. However, by and large, there is not much that human will, properly and honestly focussed, cannot resolve. Philosophically, and psychologically, a settlement achieved through mediation achieves so much more than a decision imposed by a tribunal: it preserves the relationship and allows the parties to think more laterally (i.e. imaginative and non-financial settlement terms). They are in control of the process, together, and therein lies power.
In practical terms, to improve (voluntary) mediation outcomes in the UK, an increase in the number of excellent mediators is needed, especially in the complex commercial dispute arena, together with an improvement in the quality of mediation services offered, and a smoothing out of the transition process from court to mediation (and back again, where necessary).
It will be interesting to see how the Italian experiment works out. I hope it is immensely succesful. However, I doubt the UK will follow suit, as consensus is fundamental, but the Court has made litigation so unattractive in terms of cost and / or penalty, that mediation should be considered seriously when direct negotiations become stuck.