Diplomacy has always been considered an art. Now however, the equally nuanced craft of mediation is being heralded as the way forward in dispute resolution in Scotland. It is increasingly celebrated as a flexible, confidential, swift, and efficient method of resolving disputes. These benefits are undoubtedly the reason the process has been growing so significantly both in popularity and profile. Core Mediation, one of Scotland's best known mediation-providers, boasts that it carried out more mediations from January to May 2005 than it had done throughout the whole of 2004.
Although discussions in a mediation can be as lengthy and complex as submissions in court, the rules are simple. It is, above all, informal and voluntary. The process involves the neutral mediator assisting parties towards finding a solution to their dispute; this is confidential and, until a final agreement is reached, non-binding. It is separate from any litigation that may be ongoing. As such, if the mediation process fails, parties are not prejudiced by discussions that arose during the mediation. It is only when parties are satisfied with the result achieved that a binding agreement is entered into. It is these elements that both define mediation and make it a success. The parties who are likely to be successful at mediation are those who approach the process with a genuine willingness to negotiate, but with the reassurance that, if the process fails, all is not lost.
The benefits of mediation are recognised not only by mediators and practitioners: the judiciary has also been quick to acknowledge that there is a place for the assisted settlement of court actions. However, to what extent has this acknowledgement turned into encouragement? And to what extent should encouragement extend to requirement?
In the English Court of Appeal case Burchell v Bullard and others [2005] EWCA Civ 358, judicial encouragement of alternative dispute resolution was more than apparent. In this case the court decided that where one party's refusal to mediate was unreasonable that party could be penalised in costs.
In Scotland, there are similar indications that the judicial system is beginning to put pressure on parties to consider alternative dispute resolution. The 2005/06 Business Plan for the Sheriff Court Rules Council ("SCRC") indicates that the function of the court in relation to the use of alternative dispute resolution procedures should be considered. The Mediation Committee of the SCRC has discussed the Sheriff's power to compel parties to mediate and agreed to draft a new Sheriff Court rule to encourage mediation in certain cases. A report on the proposals is being drafted. It has been agreed that the Mediation Committee will liase with the Court of Session, in a bid to ensure that both courts adopt a similar approach in relation to alternative dispute resolution.
The Scottish Legal Aid Board also has adopted a new approach to consideration of alternative dispute mechanisms. Recent guidance has indicated that the refusal by a legally aided party to enter into mediation procedures will be considered by the Board in deciding whether to grant legal aid.
With these developments in mind, we can see that compulsory mediation is not unforeseeable. Such a requirement would necessitate a departure from the established constitution of mediation as a voluntary process. If the constituent elements of mediation were fundamentally altered, would it be as successful?
Referral of a case to mediation, or any other form of alternative dispute resolution, does not guarantee settlement. Ultimately, the success of a referral is dependent upon the willingness of the parties to negotiate. The defendant in Burchell refused to mediate, presumably because he was unwilling to compromise on his defence (and counter-claim). Lord Justice Ward stated that the case was "par excellence, the kind of dispute which….lends itself to ADR," and that "[t]he defendants cannot rely on their own obstinacy to assert that mediation had no reasonable prospect of success." However, might the defendants' own obstinacy be the very reason that the mediation had no chance of success?
There may be more fateful obstacles to enforced mediation. Mediation providers are not currently regulated, and there are no formal rules governing the process. Whilst this undoubtedly adds to the benefit and appeal of mediation in its current form, if it was mandatory would it be wholly compatible with the principles of natural justice? And yet, if steps were taken to formalise the process, costs would increase, and yet another tenet of mediation would be lost. Until these issues can be reconciled with mediation as we know it, perhaps the best way forward is simply to maintain the hype.
