The Promotion of Mediation in the UK‘s Civil Justice System: More Stick than Carrot, Bryan Clark

Overcoming the Mediation Paradox: Ideas, Challenges, Good practice | International Scientific Conference | Mykolas Romeris University, Vilnius, 2023 November 21
Unlike other jurisdictions, the UK has deliberately avoided compelling parties to mediate for a long time as a direct result of Halsey’s decision, which deemed that mandatory mediation would breach the access to justice principle. Yet the UK adopted an approach where parties are incentivized to try mediation rather than obliged to try it. A “carrot” for parties is the award of costs, which would reverse the usual rationale that the losing party pays for the costs if it is established that this party unreasonably refused to mediate. Thus, even if mediation is not mandatory, one can be punished rather severely for refusing to use it by paying for the other party’s costs if it is deemed by the court that such refusal was unjustifiable. Another positive example can be seen in the statistics shown by the use of MIAMs, where 75% of those that participated in a mediation informational session later proceeded to actual mediation. A further feature of the UK mediation ecosystem that contributes to the promotion of this process is legal aid for parties wishing to try it, and a £500 voucher scheme for family cases. Recently, the UK has taken coercive measures to encourage mediation because existing voluntary schemes are not delivering the necessary results. As of 2024, the UK will widen the scope of mandatory mediation to mandatory small claims telephone mediation, family mediation, compulsory settlement negotiations as a pre-action, and compulsory mediation in cases involving people with special needs. However, regulatory and quality control, better education, addressing justice gaps and overcoming inappropriate incentives for mediation are crucial when moving in this direction.