Mediation’s Struggle Against Formal Civil Justice System
“Imagine for a moment that mediation is a product—a stain remover—that can be purchased from any supermarket. Almost all who have used it praise it highly. The product does what it says on the tin: it is cheap, quick, is easy to use, and saves time, cost and energy. On the adjacent shelf is another stain remover called litigation. Almost all who have used it are highly critical of it: it frequently fails to deliver its promise of success: it is extremely costly, very slow, and takes up huge amounts of time, money and energy. Yet people queue up to purchase litigation, and leave mediation on the shelf. Why?”[1]
Mediation as we see today in most countries is not what it was meant to be at its inception by quality proponents, who unlike efficiency proponents[2], laid a faithful foundation of mediation and ‘viewed mediation as a true alternative to litigation, characterised by a paradigm shift in dispute handling: from the pursuit of individual legal rights to maximisation of mutual interests; from the imposition of decisions to party empowerment and self-determination; from adversarialism and conflict to harmony, compromise and community’.[3] So, there was good faith and lots of enthusiasm amongst quality proponents yet their programs did not meet success. Very limited number of disputants chose mediation, hence leaving it at the mercy of the traditional justice system. By mid-1980s even most of the quality proponents surrendered and initiated to advocate for institutionalization of mediation within the courts.
Mediation has been taught to humanity since eternity, by religious clerics and by many philosophical thinkers. ‘There are societies in the world without formal procedures for judgement, but there are none without legitimate procedures for mediation’.[4] Yet, mediation had never been an interesting means of dispute resolution amongst the modern West. One writer has particularly noted that although mediation’s development in the East has been rapid, in the West (with the exception of US) it has been sluggish and reluctant. He goes on to blame the ‘ivory tower academic mentality of the West that values only litigation’.[5]
Nonetheless Europe has now leaned towards a more pro-mediation present. The European Union has issued a Green Paper[6] and a Directive[7] on mediation and its Members are discussing implementation of the practice. Nonetheless, mediation is unpopular amongst the disputants even today; this is evidenced by research undertaken by Dame Hazel Genn[8]. Genn’s findings demonstrated that of those cases referred by the courts to alternative dispute resolution (ADR), some 80% of defendants objected, preferring to have their day at the stand. A study by the European Parliament’s Directorate General of Internal Policies has also noted that several years since its adoption, the Mediation Directive has not yet solved the ‘EU Mediation Paradox’.[9] Despite multiple proven benefits, mediation in commercial and civil matters is still used in less than 1% of the cases in the EU.
One of the obstacles faced by mediation in its fight for an independent existence has been the resistance from lawyers. Lawyers, due to their legal grooming, find it difficult to adjust to the more ‘client-centred vision of dispute resolution’[10] which is an essential feature of mediation. Some believe that it is a question of public perception and a need for clients to feel they have had their day in court and that justice has been seen to be done. We are brought up in a society where conflict resolution requires the suppression of an almost primal need to triumph. If these are the motives behind the disinclination to opt for mediation, it seems advocates of true mediation have something of an Everest to climb.
Although there is ample evidence to suggest that mediation has failed outside the ambit of the traditional court system, there are still efforts in practice around the world to develop mediation as a separate institution for dispute resolution. Such an approach would indeed have numerous benefits. Development of mediation as a separate and alternative institution would also do good to the principles of law and justice in general. As mediators and judges compete within a market for dispute resolution services, the law is challenged and redefined. It is not to suggest that mediation should be given priority over the traditional legal system but that efforts should be concentrated to groom mediation to constitute a true alternative dispute resolution mechanism. Mediation may not be appropriate in all cases, ‘yet it remains commercially indefensible to continue in dispute with another, where there is an alternative possibility of early resolution’.[11]
All should be done for the creation of pro-mediation culture in the society. There is room for more research into many aspects and models of mediation. It must be done in a scientific way to be most valuable. Research should also be done to find better ways to sell mediation to those in conflict. But what is even more important is the need to shift national cultures. After all, public’s disapproval has been the major cause of mediation’s failure to offer a successful alternative. One profound benefit of mediation is its promotion of a community-based living, a society where ‘shared values could provide a basis for settlement’. It shuns adversarial attitudes but at the same time endorses the principles of justice and equity. So, the preservation and promotion of its original version is a very important task at hand and should be pursued with commitment.
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References:
[1] Paul Randolph, “Compulsory Mediation?”, 02 April 2010, 7411 & 7412, New Law Journal, available at <http://www.newlawjournal.co.uk/nlj/content/litigation-v-mediation>
[2] The lawyer/efficiency proponents saw mediation as a mean to lighten the burden of formal justice system rather than as a mechanism that could stand upright against that system and be offered as an alternative for resolution of disputes.
[3] Bryan Clark, “Lawyers and Mediation”, Springer Heidelberg New York Dordrecht London, [2012], ISBN 978-3-642-23474-3 (eBook), Chapter 1, Pg. 4
[4] Derek Roebuck, “The myth of modern mediation”, [2007], Arbitration, 73(1), Pg. 105-116
[5] Tang Houzhi, “Mediation is developing around the world”, [2009], Asia Pacific Law Review, 17, Pg. 33
[6] Commission of the European Communities, ‘Green Paper on alternative dispute resolution in civil and commercial law’, COM (2002) 196 final, Brussels, 19 April 2002
[7] Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52/EC)
[8] Hazel Genn et al, “Twisting Arms: court referred and court linked mediation under judicial Pressure”, [2007], available at <http://www.ucl.ac.uk/laws/judicial-institute/docs/Twisting_arms_mediation_report_Genn_et_al_1.pdf>
[9] Directorate General of Internal Policies, Legal Affairs ‘‘Rebooting’ The Mediation Directive: Assessing The Limited Impact Of Its Implementation And Proposing Measures To Increase The Number Of Mediations In The EU”, [2014], available at <http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/493042/IPOL-JURI_ET(2014)493042_EN.pdf>
[10] Bryan Clark, “Mediation and Scottish Lawyers: Past, Present and Future”, [2009], 13, Edinburgh Law Review, Pg. 252
[11] James Melamed, “A View of Mediation in the Future”, June 2009, available at <http://www.mediate.com/articles/on_mediation_in_the_future.cfm>
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