Mediation: thoughts from RCJ Advice
(Author: Rayla Javaid, RCJ Advice) The courts are now actively encouraging alternative dispute resolution (ADR) in civil matters to assist settlement. Pre-Action Protocol encourages early disclosure by the parties so that issues can be settled without the need to pursue litigation. Failure to do so will now inevitably lead to cost consequences as the courts will need to see that parties have attempted at the very least to engage in ADR such as mediation. This all leads back to the legal principle of proportionality.
Litigants in Persons (“LIP”) will be concerned about the trial where they will be subjected to cross-examination and for a decision being left to a judge with the potential risk of being made subject to a hefty cost order. The benefits of a LIP going through mediation, are several, they can seek to reach an agreement that a judge may not reach, one that is preferable to both parties, the cost of litigation is also a serious impediment to pursuing litigation and settling a dispute is the best way to alleviate concerns especially when some aspects of a case may be weak. Mediation is also private, without prejudice and can also avoid a deterioration in relationships whether personal or professional.
In 2016, a Report by the Citizens Advice Bureau found that 9 out of 10 people with experience of going through court as a litigant in person had said it affected at least one other aspect of their life. The Report also found that 7 out of 10 people had stated that the experience of going to the family courts as an LIP exacerbates existing mental health issues and 7 out of 10 agreed that the experience caused their physical health to suffer.
There is a risk to an LIP when the opponent is legally represented as they benefit from legal advice which would cause a disadvantage but this situation would be the same for the LIP attending court without legal representation. In such a situation, the LIP still benefits as he or she will retain control of what is being agreed to and how a settlement is reached. The mediator’s role is to facilitate movement for the participants to create solutions that they own. It is also an important consideration for the mediator to ensure that during the open sessions, if the LIP agrees to such sessions, the conduct by the participants is civil as the LIP is unrepresented. “Unless [a mediation] is very professionally conducted, there is plenty of scope for the strong to bully the weak into agreeing a solution which is against their best interests” (Baroness Hale).
“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
— Sandra Day O’Connor
Photo attribution: Nick Youngson