In 1996 Judges in the Central London County Court (CLCC) established a pilot mediation scheme for non-family civil disputes with a value over £3,000. The scheme's objective was to offer virtually cost-free court-annexed mediation to disputing parties at an early stage in litigation, involving a three hour session with a trained mediator assisting parties to reach a settlement, with or without legal representation. The scheme's purpose was to promote swift dispute settlement and a reduction in legal costs through an informal process that parties might prefer to court proceedings. It was also thought that mediation would achieve savings in Legal Aid.
This report is an evaluation of the CLCC mediation scheme based on:
data collected from hundreds of court files of mediated and non-mediated cases;
interviews with litigants, solicitors and mediators;
observation of mediation sessions.
The data collection system for the evaluation has been in place since the beginning of the scheme and has continued throughout its two-year life. The evaluation offers an assessment of:
the demand For mediation and causes of the prevalent rejection of mediation offers;
the kinds of cases for which mediation is an appropriate form of dispute resolution;
the extent to which mediation can promote settlement in civil cases;
the extent to which mediation can reduce the time taken to settle civil cases and reduce the cost of resolving disputes;
the extent to which mediation succeeds in achieving acceptable and lasting settlement of disputes;
the extent to which mediation is perceived by parties and their representatives as a satisfactory method of dispute resolution.
The rate at which both parties accepted mediation offers remained at about five percent throughout the life of the scheme and despite vigorous attempts to stimulate demand. Demand was virtually non-existent among personal injury cases, although these comprised almost half of the cases offered mediation. Contract, goods/services disputes and debt cases had the highest levels of demand although the joint acceptance rate was less than ten percent. The joint demand for mediation was lowest when both parties had legal representation. Acceptance of mediation was highest among disputes between businesses. Interviews with solicitors rejecting mediation revealed:
lack of experience and widespread ignorance of mediation among the legal profession;
apprehension about showing weakness through accepting mediation within the context of traditional adversarial litigation;
evidence of litigant resistance to the idea of compromise, particularly in the early stages of litigation.
The majority (62%) of mediated cases settled at the mediation appointment and this settlement rate remained constant between case types, indicating that mediation can be used across a wide spectrum of cases. Other findings on outcome were that:
where the plaintiff had legal aid the settlement rate was lower than average;
the settlement rate at mediation was highest (72%) when neither party had legal representation at the mediation;
mediated cases had a much higher settlement rate overall than non-mediated cases, whether or not settlement occurred at the mediation appointment, supporting the contention that mediation promotes settlement even after an unsettled mediation.
Plaintiffs settling at mediation appointments appear to be prepared to discount their claims heavily in order to achieve settlement, with average levels of settlement in mediated claims being about £2,000 lower than in non-mediated settlements.
Even on a very conservative estimate, mediated settlements occurred several months earlier than among non-mediated cases. Most parties whose cases settled at mediation believed that the mediation had saved time, although those whose cases did not settle often felt that the mediation had involved them in extra time. Solicitors felt strongly that mediation saved time. There was much more equivocation on the question of cost savings. Only half the plaintiffs settling at mediation believed they had saved costs. Solicitors tended to be more likely to think that costs had been saved. There was a common view that failure to settle at the mediation appointment led to increased costs.
The overwhelming motivation for mediating was to save time and legal costs. Few parties or solicitors had any experience of mediation or any knowledge of the process. The vast majority of litigants and solicitors made positive assessments of the mediation process. Confidence in mediators was generally high, although less so when cases failed to settle.
The characteristics most valued by litigants were:
the opportunity to state their grievance and focus on the issues in the disputes;
fully to participate in a process relatively free from legal technicality;
the qualities of the mediators.
Solicitors particularly welcomed:
the speed of the process;
the opportunity to review the case with a neutral party;
the concentration on commercial realities;
the opportunity to repair damaged business relationships.
Most mediated settlements were perceived by litigants to have been fair, although fairness was often assessed against the cost and time of continued litigation.
Negative assessments by parties centred on:
deficiencies in mediator's knowledge of the law and issues in dispute;
undue pressure to settle and bullying by mediators;
mediators being insufficiently' directive.
Mediators in civil disputes require a wide repertoire of interpersonal and professional skills as well as sound legal knowledge. Flexibility and adaptability are crucial qualities. A 'counselling' or 'therapeutic' approach, stressing communication and reconciliation, seems less well-suited to non-family civil disputes than a more directive, interventionist approach emphasising the value of settlement. There was great variation in the skill displayed by mediators and many were very inexperienced. Some of the most successful mediators were barristers, many of whom were prepared to be explicitly evaluative during the course of mediations. Mediators exert considerable power in mediation, controlling the flow of information, the use of evidence and the architecture of settlements. There was no consistent view among mediators on the question of ethics or the nature of the mediator's responsibilities in mediation.
Mediation is capable of promoting settlement in a wide range of civil cases when parties have volunteered to accept mediation.
Personal injury cases are amenable to mediation even when both liability and quantum are in issue.
Mediation offers a process that parties to civil disputes on the whole find satisfying.
Conflict can be reduced and settlements reached that parties find acceptable.
Mediation can promote and speed-up settlement.
It is unclear to what extent mediation saves costs and unsuccessful mediation can increase costs.
Mediation can magnify power imbalances and works best in civil disputes when there is some rough equality between the parties or in representation.
Mediators require special personal qualities, good training and experience.
Demand for mediation is very weak and the legal profession has a crucial role in influencing demand.
Issues requiring attention are:
The impact on weak demand of an increase in mediation fees to an economic level.
Mediation procedures, especially in relation to the use of documentary evidence.
Training of mediators.
Quality control of mediators.
Accountability and ethics of mediators.
Mediation currently operates in the shadow of normal litigation procedures and the disadvantages of those procedures provide much of the incentive for parties to settle during mediation. Procedural changes could strengthen or weaken the existing low- level of demand. Education of the profession and a change of litigation culture could also strengthen demand. In seeking to stimulate some enthusiasm among the grass roots of the profession, it is important for mediation proponents to focus on the value that mediation adds to normal settlement negotiations between solicitors, rather than simply setting-up mediation in opposition to trial. The experience of the profession is that most cases are not, in the end, tried. Mediation can add value to the normal claims settlement process in civil disputes. It offers a cathartic pseudo ‘day in court' to parties; it gets cards on the table and all the parties around the table; and, with the help of a skilled mediator, it introduces some authoritative objectivity into the assessment of the strengths and weaknesses of the parties' claims.
Thank you for the interest you have shown in the Research Series. For further information or copies of reports published in the Series please contact the following address:
Lord Chancellor's Department
5th Floor, Selborne House
54/60 Victoria Street
London SW1E 6QW
Tel: 0171-210 8520
Fax: 0171-210 0695