The courts backlog is a growing burden on the UK justice system. How might a system of mandatory mediation assist in combatting this? Mediation is one arrow in the quiver of alternative dispute resolution (see Jackson ADR Handbook 3rd Edition for a fuller discussion). Civil litigation in most cases is expensive, time-consuming and stressful for parties to a dispute. Mediation is a highly effective process for avoiding these factors and taking the dispute away from the ‘black and white, win or lose’ of a contested trial. Compulsory mediation can and will reduce the backlog burden on the Justice System (although with further considerations considered below). It has been shown that across all conflicts, mediation can be 80% effective in resolving matters at first attempt – and even more so at second or third attempt. However, the distinction needs to be drawn between the obligation to attempt mediation and a genuine objective to settle in good faith. An agreement to mediate was defined in Little v Courage when Millett LJ made the point that an agreement to mediate in such good faith requires parties to enter into such agreement and follow a defined process with an uncertain outcome. A system of mandatory mediation is unlikely to change attitude of parties to a dispute unless they understand and can see the possible benefits. One can force the horse to water but cannot force it to drink. That requires an understanding of the benefits and value of a professional mediation process. Weighing the Pros and Cons of Compulsory Mediation EXPERT INSIGHT 67 With the variety of benefits that mediation affords to parties who engage in it, it has been adopted in many jurisdictions as a necessary precursor to litigation. What effect has this had, and what would the drawbacks be if it were expanded? Experienced mediator David Bilbe offers his opinion in this feature. Expert Insight
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