So, at last, we now all know what we’ve been thinking for long enough but few would dare to say. Judicial mediation doesn’t work and, in direct contradiction of its stated purpose, generally ends up causing greater expense for the parties.
According to research conducted by the Ministry of Justice concerning Employment Tribunal discrimination cases reported in this week’s Law Society Gazette, the pilot study revealed “no discernible, statistically significant effect” on the number of cases settled or resolved without a formal hearing.
To compound matters, the research has also revealed that, far from reducing costs for the parties, those cases in which judicial mediation was used cost the parties an average £880 more in overall net costs.
Most experienced lawyers can identify more or less immediately those cases which are likely to have a reasonable chance of settling by mediation or some other form of alternative dispute resolution. Equally, we know that in most cases people pay lip service to attempts to mediate “to give the right impression to the court” but in the knowledge that any attempt at mediation is a complete and utter waste of time.
It is a farce that parties in litigation are obliged to consider mediation and other forms of alternative dispute resolution and that they can face costs sanctions if they cannot be seen to have done so. The sooner this illusory process is abandoned the better. Leave it to the lawyers to decide whether and on what terms there should be mediation. I can’t think of any lawyers I know who would push for a case to go to trial if they knew that a case could be settled by mediation. If some lawyers do engage in unnecessary costs building exercises, they will soon be found out by their clients.
The final irony is that the process was found to be “an expensive process to administer” and that the costs were not offset by the expected benefits. So it seems that judicial mediation costs the parties and the courts / tribunals and, on balance, brings no discernible benefits. Surely the time has come for the courts and tribunals to face up to the reality that introducing additional hoops for litigants to negotiate in the naive hope of reducing the administrative and judicial burden and saving costs is good for no-one and should be abandoned as soon as possible.