Lord Neuberger backed the use of compulsory mediation in smaller civil cases as a response to what he called a ‘perfect storm’ of challenges, including the legal aid cuts. In the context of the success of the compulsory mediation information and assessment meetings (MIAMs) introduced last year in family proceedings, the president of the Supreme Court advocated the ‘encouragement of mediation rather than holding back’ in his speech at the 2015 Civil Mediation Conference. He talked about mediation in the context of the ‘melancholy fact’ that many people were increasingly finding it ‘difficult, if not impossible to get access to the courts’.
‘Mediation is particularly attractive at the present time when litigation is becoming ever more expensive and time-consuming, when the law is getting increasingly complex, when legal aid is ever more attenuated, and when court fees are being increased markedly. As a result of this almost perfect storm of financial difficulties, we are at risk of depriving most ordinary people of access to justice… . It is absolutely fundamental that all citizens are able to establish their rights and defend themselves.’
Lord Neuberger called mediation a ‘good thing’ – a quicker, cheaper and less time-consuming option than litigation, with more flexibility in terms of outcome. The perception is often that neither party leaves a ‘disgruntled loser’. The risk with mediation was that, if it failed, the costs of the overall proceedings rose to accommodate a failed mediation and a trial, he said. Mediation could be disadvantageous to parties with vastly differing levels of wealth, with richer parties able to use the practice ‘cynically’. Lord Neuberger pointed out that some people ‘simply don’t want to mediate’, citing a ‘credibility gap’.
The judge quoted statistics from National Family Mediation indicating that over 80% of their mediation cases reached full settlement and, according to the Ministry of Justice, just under 70% of MIAM mediations successfully resulted in settlement. Lord Neuberger stressed that there would be very little downside to advising on mediation inappropriately, but that ‘encouraging mediation in an appropriate case could obviously be very valuable’. However, he added that ‘mediation is not litigation’ and that ‘the right of access to courts is fundamental’ – mediation must not be ‘promoted as if it was always an improved substitute for litigation’.
Lord Neuberger recommended that mediation clauses be included in ordinary contracts, as well as extending mediation to possession claims based on nuisance and minor clinical negligence claims. There is ‘a lot to be said’ for making such changes, he concluded.
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