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Is government intervention needed for mediation?

Should the UK follow California and Ireland in their efforts to make mediation mainstream? Paul Tweed says both offer valuable lessons.


Mediation is now part of the litigation culture in California and a fundamental first step for lawyers before legal proceedings are contemplated. The reason for this approach is less a result of the legal profession suddenly falling in love with a concept still viewed with a considerable degree of scepticism and reluctance by their colleagues on this side of the Atlantic, but more as a result of specific rules of evidence encouraging the parties in a dispute to “mediate before they litigate”.

The procedure for mediation in California is contained in several statutes and in case law interpreting those statutes.The California Evidence Code sets out rules based on a fundamental concept of confidentiality, known as the “mediation privilege”. Guidelines emphasise the objective of mediation as being able to reach a mutually satisfactory agreement resolving the dispute by exploring not only the relevant evidence and law, but also the party’s underlying interests, needs and priorities.The Court can appoint a mediator, who must satisfy relevant requirements and be a member of a panel sanctioned by the Court.  In other words, mediation has become an acknowledged part of the litigation process, and with this encouragement in the background, many of the attorneys I have spoken to have reluctantly acknowledged the merits and benefits of Alternative Dispute Resolution (ADR).

Ireland takes the lead

So should similar provisions be introduced in the UK  to encourage lawyers and their clients to experience for themselves the benefits of ADR and what is generally regarded as a much less costly, more effective, readily available and of course confidential means of resolving even the most difficult of disputes?

Ireland has already taken the lead with the introduction of a Mediation Bill which requires a solicitor to advise his/her client, prior to commencing civil proceedings, as to the financial merits of mediation as an alternative means of resolving the dispute. S/he will be required to provide a client with:

i) Information concerning mediation services;

ii) Names and addresses of persons or organisations qualified to provide mediation services;

iii) Insofar as is possible, an estimate of the client’s legal costs in the event of Court proceedings;

iv) Where practicable –  (a) an estimate of the costs of other parties for which the client may be liable upon success in Court proceedings, and (b) an estimate of the likely duration of such proceedings (from commencement to closure).

The Bill goes even further in requiring a written statement to be submitted to the Court by or on behalf of the litigant, confirming that mediation has been considered as an alternative means of settling the dispute and stating that the solicitor has complied with all the appropriate requirements of the Bill.  A barrister would also be required to advise the client of the option of mediation as an alternative to litigation and to certify in writing that such advice has been furnished.  

These proposed legislative changes, while essentially being a matter of common sense, represent, along with the other measures outlined in the Bill, what is likely to be a groundbreaking change in the fundamental approach to litigation in Ireland.

The UK opts for a more informal approach

For their part, the UK Government and judiciary have to date preferred a more informal approach. The former having allocated a reported £10M budget to promote mediation in matrimonial cases which, to all intents and purposes, appears to have been an abject failure, it has essentially been left to the judiciary to encourage mediation - albeit with no formal powers of enforcement. Accordingly, one has to question whether the fundamental legal culture and attitude towards ADR requires a more compelling and forceful drive in the form of legislative intervention similar to the proposed Irish model.

However, the Irish Bill has yet to become law and while more and more lawyers are adopting the spirit and intention behind the legislation, until the Bill eventually receives formal approval, litigation is likely to remain the preferred option for resolving commercial and other disputes.

Medical negligehce claims

As matters currently stand, it is not clear whether the UK will follow Ireland’s lead, but it may be that the serious financial pressures being inflicted on the health services in both countries will expedite a change in approach, with the incentive being a multi-million pound/euro saving on damages and legal costs in medical negligence claims.

On 31st March, 2011, the NHSLA estimated that it had potential overall liabilities of £16.6bn relating to clinical negligence claims in England. Of claims settled by NHSLA the damages payment in 2010/11, a sum in excess of £257m was paid in legal costs. The situation is not much better in Ireland with figures in the region of €60m being cited. Medical negligence disputes are ripe for a drive towards mediation with a view to attempting to achieve a settlement before legal costs, and indeed damages, begin to spiral out of control and sight is lost of the core objective of compensating the victims fairly and in proportion to the loss and injury suffered.

However, regardless of whether the dispute relates to a clinical negligence claim or a breach of commercial contract action, the bottom line is that a fundamental shift in claims culture and attitude needs to be addressed, and this is unlikely to come about unless there is an enforceable statutory or other requirement in the background.  

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09 September 2014

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