The rise of mediation - the answer to court backlog?

Over the past two decades there has been a concerted effort from the Government and the courts to encourage parties to litigation proceedings to seek to resolve their disputes via the process of Alternative Dispute Resolution (ADR). One of the most popular forms of ADR is mediation.

Years of cuts in funding to the court system have resulted in delays and cancellations abound for would-be court cases. In light of this, the option of mediation represents a welcome alternative.

The COVID-19 pandemic has further disrupted the litigation procedure forcing all stages of litigation, including ADR, online.

This article will contemplate the reasons for the popularity of mediation and reflect on the impact of COVID-19 on mediation, considering whether the general trend of increased use of mediation will continue post COVID-19.

In the late 1990s Lord Woolf's extensive report into the topic concluded that civil litigation in the UK was hamstrung by costs, complexity and delays.  One of the key suggestions was that there should be an increased availability and usage of ADR. It was at this point that ADR began to be considered by parties more seriously.

The implementation of the Civil Procedure Rules in 1998 meant that many of Lord Woolf's suggestions began to be put into practice.

Indeed, the 'overriding objective' of the new rules was to ensure that courts can deal with cases justly, and at proportionate cost. ADR, including mediation, represents a m­­­­uch more cost-effective way of settling a dispute than going to the courts.

There has since been a continued impetuous from legal organisations and professionals encouraging parties to mediate and signifying the virtues of ADR.

Further reforms from Lord Jackson - on the topic of promoting access to justice at proportionate costs - began to be implemented in 2013. This led to an authoritative book on the topic, entitled Jackson ADR Handbook, being issued to all judges involved in civil proceedings. In 2017 The Civil Justice Council working group on ADR published its final report. It set out multiple recommendations, the majority of which focused on introducing more vigorous methods by which parties are encouraged to use ADR.

Mediation is a form of negotiation whereby an independent third party - the mediator - will attempt to bring the two competing parties together through compromise. The principle aim of mediation is to avoid litigation, thereby dealing with the dispute in a cost-effective and time-efficient manner. Mediation can take place at any stage of the dispute process.

The intended result of mediation is the parties reaching a settlement that is documented, either at the mediation or shortly afterwards, usually in the form of a settlement agreement, signed by the parties and becoming legally binding.

The mediator will be professionally trained and skilled at being able to focus the parties' minds on the key issues and facilitate an agreement. The courts do not look kindly upon a party who refuses to mediate because of the belief that the parties are too far apart in their respective positions. A party who is judged by the court to have unreasonably refused mediation may have costs penalties imposed upon them.

The Centre for Effective Dispute Resolution (CEDR) reported in 2016 that 41% of mediators and 43% of lawyers have seen an increase in mediation following the Jackson reforms.[1]

According to the 2018 bi-annual report from the CEDR, the number of reported civil and commercial mediation cases in England & Wales was 12,000 in 2018, a 20% rise on the 2010 figure, and a marked increase compared to the 2,000 cases in 2003.[2]

Not only can this rise be attributed to mediation being an effective medium of dispute resolution - the overall aggregate settlement rate of mediation being 89%[3]- but undoubtedly court closures over the past decade have pushed more litigants towards settling their dispute via alternative means.

Between 2010 and 2019, over half the courts across England and Wales were closed[4]. The result being increased delays for parties seeking to litigate at court.

With the Government planning to close 77 more courts by 2025/26, according to a report by the National Audit Office[5], the backlog of trials waiting to be heard will only increase. Against this backdrop, it is understandable that parties are turning more frequently to mediation as a means to settle their dispute. 

It is evident that prior to COVID-19 court efficiency and effectiveness were already major issues; the pandemic has merely exacerbated the problem. On 22 May 2020 in his evidence to the Parliamentary Select Committee, the Lord Chief Justice, Lord Burnett commented on the health of the courts as they entered the pandemic. He stated that that courts had been "starved of funds" and the disruption caused by the first months of the pandemic was "the consequences of that underfunding are coming home to roost."

According to a Parliamentary report on the impact of COVID-19 on the courts and tribunals of England and Wales, the High Court, and Business and Property Courts around the country have been operating in the region of 80% capacity during the pandemic.[6]

Other civil jurisdictions have been harder hit. For example, according to HMTCS data, back in May 2020 there were 13,504 outstanding public family law cases (an increase of 1,209 from the pre-Covid-19 baseline) and 47,011 private family law cases (a rise of 4,706).[7] No doubt these delays continued to rise as the months in lockdown passed by.

With the additional uncertainty and delays in the court system, there appears to be an increased incentive to use mediation to settle disputes.

Along with every other element of the litigation process, mediation has had to adapt to life under Coronavirus. In March of this year, the Chair of Civil Mediation Council, Sir David Foskett, stated in a letter to its members, that "the need for mediation has not gone away" and that the pandemic could indeed result in a greater demand.

Mediators had already started to adapt their normal working arrangements to offer online mediation according to Sir David. To get a better insight into the impact of COVID-19 on the mediation industry, and the future of mediation we asked him for his thoughts on the following:

"The short answers are "extremely quickly" and "extremely well". Mediators have to be adaptable because no two disputes are identical, the personalities of those involved will differ from dispute to dispute and the motivations for settling the dispute may differ. So, adapting techniques to the consequences of the pandemic, whilst unexpected, has been second nature to most mediators. Whilst online mediation would not usually be the method of choice for most mediators, it can be made to work and I am not aware that the success rate of mediations generally has diminished over the last few months."

"From the mediator's point of view, the lack of immediate personal contact with the participants. The training of mediators until recently has always involved training face-to-face with real people. Much of a mediator's art is to "read" the parties and to react to the way the participants themselves are speaking and behaving during the mediation. That is so much easier in person than via a Zoom or other similar virtual meeting. As I have said, I am not suggesting that mediation via that medium does not work – it does – but I think most mediators would prefer the face-to-face contact, certainly in very difficult cases, and I would be surprised if most do not try to revert to that once the pandemic is over. I may be wrong, but I think that will be the case."

"Yes, I do, for the reasons you have referred to in this article. Even after Lord Woolf's reforms court procedures were still expensive and cases took a long time to resolve. The pandemic will almost certainly have added to the existing backlog and it will be a while before things simply catch up with where they were before the pandemic hit. Lord Neuberger, the former Master of the Rolls and President of the Supreme Court, advocated the greater use of mediation almost as soon as the first lockdown commenced. It will always require the support of the legal profession and the judiciary to encourage greater use of mediation, but I believe there will be a continuing impetus for ADR, particularly in the form of mediation, once we are in the post-Covid situation."

Mediation offers many advantages to parties seeking to settle their disputes, from a costs, speed and flexibility perspective. This, combined with increased delays in the court system due to combination of under-funding and court closures, has pushed more parties towards mediation.

The COVID-19 pandemic has further impacted the ability of courts to hear trials efficiently. Mediators have had to adapt by delivering their services online and look to have done so effectively. There is no reason to suggest that the growth of mediation will slow in the coming years.

[1] 'The Seventh mediation Audit', CEDR 11 May 2016

[2] 'The Eighth mediation Audit', CEDR 10 July 2018

[3] 'The Eighth mediation Audit', CEDR 10 July 2018

[4] 'Court Closures', The Law Society 20 May 2020

[5] 'Transforming Courts and Tribunals: a progress update', National Audit Office 13 September 2019

[6] 'Coronavirus: the impact on courts' Parliamentary Select Committee publication 30 July 2020

[7] 'Coronavirus: the impact on courts' Parliamentary Select Committee publication 30 July 2020