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Moving on from a judicial preference for mediation to embed appropriate dispute resolution
Mediation occupies a central position within the English civil justice system. It is promoted by policy makers and the judiciary for its cost-saving virtues for both the parties and the courts. Indeed, as the civil courts continue to struggle with increasingly limited resources, the senior judiciary has embraced and praised mediation as the most preferred alternative dispute resolution (ADR) procedure in diverting cases away from judicial determination, thereby preserving the courts’ finite resources. This strong judicial preference for and promotion of mediation has been consistently reflected in the evolving ADR jurisprudence, extrajudicial statements, and successive civil justice reforms. Mediation featured prominently in Sir Rupert Jackson’s Review of Civil Litigation Costs and was commended for its role in controlling litigation costs for the parties and the courts. More recently, mediation was a major focus of Lord Justice Briggs’ (as he then was) Civil Courts Structure Review in which he proposed the introduction of an online court, now called the Online Civil Money Claims (OCMC), for the resolution of low-value money claims, with an enhanced focus on settlement.
Although there can be no dispute concerning the rationale for strong judicial preference for mediation, this has created ‘judicial mediation bias’. Judicial mediation bias entails the overzealous judicial focus on mediation as the most preferred ADR option, but without sufficient consideration of other ADR procedures which have been neglected and underused. Judicial mediation bias has had an adverse impact on the development of ADR – both as regards the use of other forms of ADR, and in relation to building the skills for and availability of these alternatives. From a jurisprudential perspective, the case law reflects the development of a narrow and distorted concept of ADR which simply equates ADR to mediation. This distorted understanding of the concept of ADR has been partly reinforced by the judiciary’s tendency to refer to ADR as simply equating to mediation, rather than distinguishing between the various ADR procedures, and thereby promoting a wider appreciation of the concept and nature of these procedures. This is particularly concerning in respect of Court of Appeal authorities because of that court’s responsibilities in monitoring, developing and reforming civil procedure.
My article in the Northern Ireland Legal Quarterly critically discusses judicial preferential treatment of mediation and the existence of judicial mediation bias. It does so by analysing the ADR jurisprudence (with a focus on Court of Appeal ADR decisions), extrajudicial statements, and successive civil justice reforms. In order to remedy the ills caused by judicial mediation bias, I put forward detailed proposals for reform. I suggest that stage two of the OCMC, which now includes an opt-out mediation process, provides the greatest potential to remedy the ills caused by judicial mediation bias so that, as the jurisdiction of the OCMC expands in the future beyond small-value money claims, a range of ADR procedures, including early neutral evaluation (ENE) and collaborative dispute resolution, are embedded and used. In particular, the recent Court of Appeal decision of Lomax v Lomax  EWCA Civ 1467, which held that the courts could, as part of their case management powers, compel parties to engage with judicial ENE, provides a new impetus for a judicial culture shift and greater integration of ADR within the civil justice system. I also argue that the recent Courts and Tribunals (Judiciary and Functions of Staff) Act 2018, which introduces the flexibility for judges to be deployed across a range of cases, provides impetus to incorporate and encourage judicial ENE at stage two of the OCMC.
Judicial mediation bias has undermined and distorted dispute resolution and ADR so that a two-system process exists within the English civil justice system: litigation and mediation. This situation is wholly unsatisfactory for disputing parties, who ultimately bear the cost of engaging with the civil court process. It is only through a judicial culture shift and procedural changes, including grasping the opportunities provided by the OCMC, that a wider understanding and application of dispute resolution and ADR can be restored and preserved.