Publication - Research and analysis

Mediation in civil justice: international evidence review

Published: 25 Jun 2019
Directorate:
Safer Communities Directorate
Part of:
Law and order
ISBN:
9781787819375

Available literature and evidence on mediation in civil justice (civil/commercial) in five international jurisdictions: Australia, Canada, England and Wales, Ireland, and the USA.

Mediation in civil justice: international evidence review
Key Operational Features of Mediation in the Selected Jurisdictions

Key Operational Features of Mediation in the Selected Jurisdictions

Is mediation regulated by statute in these jurisdictions?

These jurisdictions present a mix of legislative and non-legislative approaches to mediation. The federal countries have a more complex system of both federal and state/province/territory level legislative structures, which means governance of mediation is more complex than in those non-federal countries explored in this review. A brief outline of each is provided below.

Australia has federal/commonwealth level and state/territory level legislation, along with court rules. Federal level legislation is focused on what is needed to be done to show an attempt at mediation or other ADR, by parties and lawyers, in court-annexed mediation. State level legislation governs referral by state courts to mediation, fees, confidentiality and privilege, and mediator responsibilities.

Canada has some legislation for particular civil cases at both federal and province/territory level (for example, oil and gas cases) – though most of its mediation processes are guided by province/territory court rules; these become statute in Canada, meaning a legislative route is ultimately taken. Provinces/territories were requested to come up with a local response to encourage greater use of ADR by the federal government. Provincial Courts and Queen's Bench courts (lower and higher respectively) may have different approaches within provinces.

England and Wales have a non-statutory basis to mediation, with the Civil Procedure Rules imposing duties on the court to facilitate settlement before a hearing. In particular the court must further this overriding objective by actively managing cases, this includes (explicitly in the rules): encouraging the parties to co-operate with each other; encouraging the parties to use an ADR procedure if the court considers that appropriate; and helping the parties to settle the whole or part of the case.

The Republic of Ireland chose to create and enact its Mediation Act 2017. This sets out the entire process of mediation, including standards, regulation and training of mediators, and, though broad brush, what the process of mediation should look like.

The USA also has some federal level legislation, but in general States govern their own processes, and in the States explored here, this has been through a blended approach with court rules the main form of governance, but some legislation also. A federal level Uniform Mediation Act (2003) encouraged greater use of ADR across the USA. States are divided into counties and counties may each take their own local approach, with individual courts having oversight of proceedings under their jurisdictions. For example, Florida has a more uniform approach to mediation across the State due to a uniform funding model, whereas Ohio has a more local approach: each of the 88 counties in Ohio may have slightly different approaches to mediation.

Legislation was seen to provide clarity and coherence for those working with mediation – whether this is the reality in practice is debateable, but this was the intention. In the United States, where there is a more blended approach, key informants noted that governance of mediation had grown up slowly and in a more piecemeal form, and that legislation works when there is already a growing culture of acceptance of mediation. However, in Australia, key informants felt the culture would not have grown without legislation. There is therefore some disagreement on the use and importance of legislation between jurisdictions, which may come down to local context.

Voluntary or Mandatory: what is the degree of compulsion to mediate?

Whether a system is mandatory or voluntary is not always easy to define, and is subject to some discussion. There are degrees of mandatoriness, however, again, it is worth stressing that no jurisdiction under study here compels parties to settle, though some compel parties into mediation. As previous work on ADR and family justice by the Scottish Government states:

There are shades between 'voluntary' and 'mandatory'. ADR may be made mandatory by a statutory or court rule for all cases in a defined class; made mandatory by an order issued at the court's discretion in cases thought likely to benefit; made mandatory by one party electing for ADR; or made a condition of procuring legal aid. ADR may also be voluntary but encouraged by a court backed up with sanctions for unreasonable refusal; or entirely voluntary, with the role of the court reduced to the provision of information and facilities.[15]

The most accepted scale of mandatoriness is Quek's 'continuum of mandatoriness'[16] – which she references as being adapted from Professor Tania Sourdin's work – which states that there are 5 levels of mandatoriness in mediation: (i) Categorical or discretionary referral with no sanctions; (ii) Requirement to attend mediation orientation session or case conference; (iii) Soft sanctions; (iv) Opt-out scheme; (v) No exemptions.

Ireland and Maryland have technically voluntary systems of mediation, but our other jurisdictions can be categorised on this scale (though it should be noted that the complexity of civil justice mediation in each jurisdiction means these are very broad brush categorisations):

Table 2: Level of Mandatoriness of Mediation by Jurisdiction

Jurisdiction

Level of Mandatoriness

Australia: New South Wales

New South Wales can be considered to have a category 5 mandatory scheme, as parties can be compelled to enter mediation with or with consent.

Australia : Queensland

Queensland operates something closer to an opt-out category 4 scheme, as there is room for parties to argue not to be sent to mediation.

Canada: Alberta

There is some nuance here, with Alberta's higher court currently working on a voluntary system, though its Provincial Court has a category 4 opt-out scheme.

Canada: British Columbia

British Columbia's category 4 opt-out system has stronger guidance on specific exemptions than Ontario, but judge discretion remains significant too. The 'Notice to Mediate' can be brought by one of the parties, keeping the courts out of the process initially; if one party wants to mediate, the other party is compelled to try.

Canada: Ontario

Ontario has a category 4 opt-out scheme and the opt-outs are down to judge discretion. This system operates in Ottawa, Toronto, and Windsor, but has not been rolled out beyond these cities.

England and Wales

Category 3, with current cost sanctions in place for lack of engagement with ADR.

USA: Florida

Florida is a case of category 4 mandatoriness, with the potential for opt-out based on judge discretion alongside specific criteria, minimising subjectivity. The ability to opt-out is seen as crucial to maintaining or repairing relationships.

USA: Ohio

Ohio also has an opt-out category 4 system of mandatory mediation – parties may request to be exempt from mediation, but a judge can order or strongly encourage they attend mediation.

Maryland presents a more complicated picture. Maryland has what is officially defined as a voluntary system of mediation, but the court can mandate mediation in certain circumstances, when it feels it appropriate (the courts cannot mandate for mediation if the parties need to pay for it themselves). It was clear from discussion with experts in the area that the definition of mediation as voluntary in this State is much debated. It was pointed out that the court rules of Maryland ask that those who come to court give mediation a 'good faith try' before returning to litigation, which could be defined as category 1 mandatoriness. Also, if a judge feels that mediation is necessary they can strongly encourage mediation and ask parties to provide a reason why they should not be exempt, which then comes down to judge discretion and operates more as a category 4 mandatory system.

Ireland has the voluntary nature of mediation enshrined in its legislation, but could also be counted as a 'soft sanctions' category 3 mandatory system. Under the Mediation Act 2017, in awarding costs in respect of proceedings referred to mediation by a court, the court may, where it considers it just, have regard to any unreasonable refusal or failure by a party to consider or engage in mediation. In short, all the jurisdictions in this review could be categorised on the mandatory continuum, with no 'pure' voluntary system.

To delve into the two most local examples in more detail, Ireland has chosen to create legislation that enshrines a voluntary system as central to mediation in civil justice. Speaking to a representative from the Mediators' Institute of Ireland, it was clear that this had been a significant point for them, with voluntariness seen as intrinsic to mediation.[17] The Institute was concerned that making mediation mandatory would turn people away from mediation and/or they might participate in bad faith.[18] It was also very important to them that parties should be able to leave mediation at any time, should they feel uncomfortable – but it is worth noting that all jurisdictions under study in this review allow people to choose to leave mediation once attempted. The Law Commission report in Ireland that led to the Mediation Act 2017 also noted the importance of mediation being voluntary, to allow for genuine participation and not to diminish access to the courts.[19] Maintaining voluntariness appears to be significant to major stakeholders in the development of Irish mediation. Writing prior to the recent legislation, Moore notes that there have been instances in Ireland of judges appearing to compel parties to mediate and that these decisions created some debate, particularly around the difference between voluntariness into and within the process.[20] Moore stresses the view that voluntariness is central to mediation, but accepts that voluntary processes may not move enough people towards mediation as mandatory processes do.[21] Ultimately this tension is left unresolved in this discussion and this is illustrative of the wider debate about this issue: mediation is meant to be a voluntary process, with the self-determination of parties at its heart, and yet, without mandatory mediation there is limited uptake.[22] Figures for uptake in Ireland since the recent legislation are not yet available.

The use of ADR in England and Wales is at a point of potential flux, with a recent Civil Justice Council report stressing the need for greater action around uptake of ADR – focussing on cost sanctions and the potential in future for a system similar to that of British Columbia, which would move England and Wales towards a greater level of mandatory ADR. As Billingsley and Ahmed argue, England and Wales have an official judicial line of ADR being a voluntary process.[23] However, the threat of cost sanctions leaves parties unsure how much effort they should put into ADR and resolution before court. Billingsley and Ahmed also argue that some judges have taken their powers of encouraging ADR to the point of actually compelling parties and that this has left precedence confused.[24] They recommend a move towards clarity, with a level of mandatory mediation built in – either through clear judge powers to compel mediation on a case-by-case basis or by building in court rules of mandatory mediation for all cases.[25]

At what stage is mediation compelled/encouraged (i.e. pre-litigation or during litigation)?

There are a wide range of practices across and within jurisdictions. Parties may make use of private or community mediation at any time, but court-connected schemes may mandate a specific entry point to mediation that can differ by court, case level, and case type. Some cases are sent to mediation on the day of the trial whereas others will have a pre-arranged appointment; mediation can occur both before and during trial, depending on the specific system. In some jurisdictions mediation can also occur as part of the appeals process, both pre-appeal or during the hearing of the appeal.

The literature tends to suggest that the stage at which mediation occurs could be important to outcome, but is unclear on what the best stage is.[26] Early mediation is important to cost and time savings, to preventing parties becoming entrenched in their positions, and to minimising stress – as well as hopefully allowing parties to move on from their dispute with a positive outcome – providing a general impression that pre-litigation mediation would be best.

However, whether all information should be provided to all parties before mediation takes place remains in dispute. Full discovery may slow down the point in the case at which mediation occurs, yet having full information can be important to a fair and positive outcome and to the mediator being able to genuinely help parties, as they will also be fully informed. When mediation occurs can also come down to what staff and resources are available to manage the administrative process of arranging mediations, as well as carrying them out.

Some examples of process are provided in Boxes 1-5 for illustrative purposes and to provide some more detail on each jurisdiction; these can be found throughout.

How is mediation funded?

Systems of funding for mediation vary. Private mediation is always paid for by parties – fees will be set out and agreed in advance. This is the same for court and government systems where parties are expected to pay – parties must agree in writing how much they will each pay (generally a 50/50 split is expected, but this can be changed) and agree to the mediator's fees. Court and government systems usually have lower fees than private mediators for an initial period, which can then rise to normal fees beyond this period though a mediator may agree to continue with the court/government fee. Parties therefore pay in a lot of cases, even if this fee is small.

As an example, for Ontario's mandatory mediation programme[27] the current fees are:

Fees for mandatory mediation session and for any additional time

4. (1) The mediator's fees for the mandatory mediation session shall not exceed the amount shown in the following Table.

TABLE

Number of Parties

Maximum Fees

2

$600 plus GST

3

$675 plus GST

4

$750 plus GST

5 or more

$825 plus GST

O. Reg. 43/05, s. 4 (1).

(2) Each party is required to pay an equal share of the mediator's fees for the mandatory mediation session, unless the court orders otherwise. O. Reg. 43/05, s. 4 (2).

(3) After the first three hours of actual mediation, the mediation may be continued if the parties and the mediator agree to do so and agree on the mediator's fees or hourly rate for the additional time. O. Reg. 43/05, s. 4 (3).

In Florida fees range from $30 to $100 dollars per session depending on the level of court, though there are some exemptions for particular kinds of cases – dependency mediation in family, for example – and for 'indigent' parties. In Maryland, parties cannot be made to pay for mandatory mediation.

One court solution to finding funding for mediation is by setting up 'Trust Fund' payments – in Florida a fee of $1 is charged on all civil cases that are filed to go into a Trust Fund to help pay for mediation for those who cannot. Florida also has a State-wide, state-funded 'Mediation Model' to allow for consistent funding of mediation across all counties of the State. Before this (prior to 2004) there was a lack of consistency in funding and provision and therefore a decision was taken to bring funding to State level to increase resources and use. This is one of the most consistent forms of funding available in the jurisdictions reviewed.

However, there are also court/government programmes that are free to users. In such programmes, government funding is used to fund court programmes; court budgets and fund-raising initiatives may also be utilised (see Florida example above). In well-funded programmes, the court will pay mediators. Community mediation is generally free to all parties – these programmes are based on government or charity funding and must be continually sustained in this way.

In programmes that are less well-funded, they rely on mediators acting in a voluntary capacity for the court and government to stretch their funding. Where court staff are trained mediators, this work is part of their day job and their salary. There were concerns about voluntary mediators, who are not paid at all, across jurisdictions for two reasons: first, this does not seem sustainable in the long-run, as the goodwill of mediators may run out/cannot be expected to continue forever, and two, it may decrease the credibility of mediation as a profession.

Case Type

With some exceptions – due to other Acts covering particular cases already, or mandating that some cases go to other forms of ADR – most cases could go to mediation in all jurisdictions. For those with voluntary systems – Ireland and England and Wales – concerns around which cases go to mediation was less pronounced as there is limited pressure on parties to attend mediation. In Australia, Canada, and the USA there was more significant discussion around cases where power differentials would be different, including small companies facing larger companies, individuals facing companies, those without representation facing those with representation, and cases of violence. Domestic abuse (DA) cases were generally excluded from mandatory mediation, however there was some debate about this.

Box 1: Process of Mediation: Illustrative Examples

Example 1: The Provincial Court in Alberta, Canada, deals with small claims. A claimant will file a dispute note and this will then go to the court coordinators who will review the claim and case and decide the best course of action. If they decide it is not suitable for mediation it can go straight to court. They will make this decision based on their professional judgement, but they also use a matrix to help guide these decisions, which they change and update over time, based on their in-house agreed criteria. However, if they decide mediation could work then it is mandatory for parties to attend.

Parties may also request mediation and judges can also order mediation. This will then be a 3 hour session and will always be co-mediation. There is a team of volunteer mediators involved, though they will be paid a modest fee by the court. Users do not have to pay for mediation, but they do have to pay to file their dispute note and for lawyers, should they choose to have them.

The court defines success by settlement rate, as the focus is on reducing court backlog. Currently there is a 67% settlement rate, according to one expert in the area. This has been fairly consistent over the 20 years of this scheme, which is considered a real success.

Agreements will then be made legal by the court through an extra process of court/judge overview of the agreement; this process will be paid for by the court so users do not have to pay. Mediation is entirely confidential, but the settlement will not be, so that it can be enforced.

For example, in Ontario's mandatory mediation programme DA cases can be mediated: this is usually achieved through shuttle mediation so parties do not have to meet face-to-face. On the other hand, Ohio has allowed DA cases to be mediated, but is in the process of reviewing this as there are continued concerns throughout the mediation community about power dynamics within these kinds of mediations.

Box 2: Process of Mediation: Illustrative Examples

Example 2: New South Wales has its own legislation covering mediation and other procedures in civil justice at all court levels: the Civil Procedure Act 2005. The Act makes it clear that the main thrust of using ADR is because it is a quick, cheap means of dealing with claims.

Within the Act it is set out that any level of court may refer a matter for mediation with or without party consent. Such referral can only be made once litigation has started, but mediation can be voluntarily started at any time. Sourdin states that 'matters are increasingly referred on a mandatory basis' in NSW (2016: 300); she quotes 62% of mediations referred by the Supreme court in NSW as being referred on a mandatory basis (2016: 301). Judges also have the power in NSW to refer parties to mediation information sessions; these session are mandatory, will be less than half an hour, and then allow parties to make an informed decision about whether to enter mediation. The state's statute book now has 'around 50 statutes that make provision for, or acknowledge the availability of, some form of dispute resolution' (New South Wales Law Reform Commission, 2018: 1).[28]

Currently, pre-litigation steps to negotiate, mediate, and settle do not need to be shown if a case goes to trial – though a judge may still be interested in mediation or other ADR possibilities and may mandate mediation after litigation has started.

A recent New South Wales Law Reform Commission report states that mediation continues to be debated within the state, in terms of how it should look, coverage and consistency, and safeguarding of non-judicial contexts. The Commission felt that '[n]o sufficient harm has been identified as arising from the current diverse arrangements' to warrant change to the existing statutes, instead arguing that mediation is so context-specific that the most flexible approach to it is the best one (New South Wales Law Reform Commission, 2018: 4).

Who carries out mediation and what style of approach is used?

There are a range of approaches across jurisdictions. Mediation can be carried out by trained court staff, court-based mediators, mediator-lawyers or mediator-judges, as well as by community and private mediators. Courts usually keep a roster of community or private mediators they are happy to work with based on certain qualification and experience criteria and many court-annexed programmes rely on these mediators to function.

There are a range of styles of mediation, with the main three being facilitative, evaluative, and transformative. These vary across jurisdictions and a range of practices are in operation. In Ireland, for example, the Mediation Act appears to recommend a facilitative approach to mediation (Section 2); however, in Section 8, sub-section 4 of the Act it is stipulated that mediators can offer solutions to disputes should the parties request them, but parties are not required to accept these. Often, facilitative mediation was held up as the 'purest' form of mediation and therefore the best, but any evidence exploring the reality of mediator practice in these jurisdictions found a range of styles, sometimes even varying within the mediation itself.[29]

In one of the strongest studies on mediation style, undertaken in Maryland, it was found that offering solutions to parties was associated with less positive outcomes in the long-term, with parties feeling less in control of the situation and less likely to change their approach to conflict. Encouraging parties to find their own solutions had much more positive short- and long-term outcomes. Though 'reflecting' mediator strategies – reflecting on the conflict and reflecting back emotions and responses raised by parties – without actively discussing solutions had positive short-term outcomes, this strategy did not have a strong effect positively or negatively on long-term outcomes.[30]

It is also worth mentioning here that what mediation 'is' in comparison to other methods of dispute resolution is not always clear in the literature and there are blurred lines in terms of terminology and practice. Settlement conferences, judicial evaluation, case conferences, and other processes are sometimes subsumed under the term 'mediation' or used interchangeably, as if there is no significant difference. Carefully defining mediation – and how it is different to other case management and ADR – is important for moving the discussion forward and creating a sustainable system of mediation in relation to other ADR.

Regulation and Training of Mediators

Throughout the review of evidence the importance of mediator training and experience was reiterated.[31] This is perhaps unsurprising, but the importance of training, it appears, cannot be overstated. It can help to produce settlement, but it can also help mediators to ensure the process is fair, that parties are given good advice, that difficult disputes are well handled, power imbalances are dealt with, and disputes that should not be mediated are actively recognized. Maryland research has explored this issue in some detail and found that general educational qualifications are not significant to the quality of mediation – the State Judiciary used to have a requirement for a degree for mediators, but this has been removed – and that instead experience as a mediator and the skillset to work on understanding participants in a dispute were the most significant factors in effectiveness.[32] The Director of Community Mediation Maryland, Lorig Charkoudian, stressed the importance of a diverse mediator group that can reflect the community and its experiences. Some of her research has found that racial diversity is important for parties to feel trust in their mediator and a sense of self efficacy, for example[33]. Diversity is an issue to bear in mind when considering qualifications and standards for mediators.[34]

Excepting Florida, across the jurisdictions in this review, mediation remains a generally self-regulated profession, notwithstanding the regulation that legislation and court rules provide.[35] Florida though has a strongly regulated system, with a full system of court regulation in place with committees charged with overseeing: the monitoring and improvement of court-connected ADR; ethics in mediation; mediator qualifications and discipline; mediator training; and a specific complaints committee for mediation in parenting disputes (though family justice is out of scope for this review). Therefore, there is court regulation of mediation and a process of continuous review and improvement.[36] Noce et al. have described Florida's system of mediation (and ADR more widely) as 'highly regulated'.[37] Part of the tradition of mediation has been its 'informality, flexibility and originality' which has meant it has sat apart from regulation and law[38]; as it becomes more institutionalised, this will require inevitable change.

Elsewhere though, various mediation and ADR bodies have mediation standards, including government standards, which are voluntary to sign up to. There are systems for complaint – such as in Ireland, where the Mediators' Institute of Ireland deals with complaints about those mediators that are signed up to its standards – but these are specific and often limited in scope and resources. Ireland's new legislation has mandated that there should be a regulatory body that goes beyond current provision, though this is not yet in place.

Across all jurisdictions, court-connected mediators can more easily be regulated than private mediators and there are minimum training standards required to act as a court mediator, sometimes with an additional need to be accredited by a mediation body, which is sometimes specified. In Australia and the United States there are federal level standards for mediators, but again these are not mandatory to sign up to, but a suggestion of best practice. States/territories and individual bodies may use these standards as the basis for their own or create their own standards.

The training standards for court-connected mediators varies, but those who wish to take on violence cases or family cases (though this is outwith the scope of this review) would need to take on further training than the basic training for general civil cases.

Box 3: Process of Mediation: Illustrative Examples

Example 3: Mediation in Ohio is governed by the Ohio Uniform Mediation Act, 2005 (OUMA), adapted from the federal-level Uniform Mediation Act (2003), which was intended as a guide for States to use in this way. The OUMA allows any civil case to be referred to mediation by a judge or for parties to request mediation. Both pre-filing mediation and mediation between filing and court proceedings exist in the State, with Small Claims courts tending to use pre-filing. Based on the success of initial pilots in the State, many courts began to employ permanent mediator staff, and funded this through local authority funding or court trust funds.

The OUMA also states that the proceedings should be confidential, but that if this confidentiality is to extend beyond those involved in the formal proceedings – i.e. you do not wish parties to discuss the proceedings with family or friends – separate agreements must be made. Mediation is privileged so, as with most states in America, nothing that happens in a mediation can be used in court except in specific circumstances relating to potential or actual harm, malpractice, or breaking the law. Final, signed mediation agreements can be shared with the court. The mediator can always report whether a mediation occurred, who was there, and whether settlement was reached without breaching confidentiality.

The Supreme Court rules allow for the extension of time for mediation and otherwise generally correspond to the Uniform Mediation Act. Though Supreme Court Rule of Superintendence 16 regulates court-connected mediation, and demands that all courts consider mediation, it specifically allows local courts flexibility as to their own content on mediation. There are 88 counties in the State of Ohio, each with their own local courts – there is therefore a great deal of variation and complexity in local practice and governance. This is similar in Maryland, with Florida having a more consistent model due to a programme of state funding.

Confidentiality

Across all jurisdictions there was a commitment to maintaining mediation as a confidential process. However, there was some debate over the extent of confidentiality. Mediation is intended to be a private process, with confidentiality assured so that discussions can occur that will not prejudice the case should it then go to trial; the process is not for public scrutiny. This has led to some debate over the extent of confidentiality and whether a judge can call for details of the process, outcome, and settlement, as well as whether only the mediator and parties are bound by confidentiality or whether others who may attend a mediation session are also bound, and whether the mediation should remain confidential beyond this, i.e. parties should not discuss it with neighbours, friends, or family who did not attend and have no stake in the claim. Overall, in these jurisdictions, mediation was a confidential process, and confidentiality could only be broken in particular circumstances – where there may have been professional malpractice, in cases of potential or actual harm, or where a crime may have been committed. Parties could, however, often write full confidentiality into their mediation agreements. Settlements, if made legally binding, could not be confidential.

Box 4: Process of Mediation: Illustrative Examples

Example 4: In Ireland, mediation can occur before litigation begins or can be triggered during proceedings by one of the parties or by a judge's suggestion. Halting proceedings for mediation does not have an effect on the time allowed for litigation, so the case will not be 'timed out' of court due to an attempt at mediaiton.

Significantly, the Act creates a requirement for lawyers and barristers to provide clients information about mediation; there should be proof of this, which a judge may call for should the case come to court. This forces legal professionals to discuss mediation with clients and bring it to their attention, and specifically asks lawyers to frame mediation positively:

14 (c) provide the client with information about—

(i) the advantages of resolving the dispute otherwise than by way of the proposed proceedings, and

(ii) the benefits of mediation.

The mediator should note if the mediation has taken place and whether it has been successful. No further information is required, though mediators should note if one party failed to take part in mediation. A judge can then decide if this failure was unreasonable and distribute more costs to this party; they can also distribute costs unevenly should one party unreasonably refuse to take part in mediation.

Enforceability

Mediation agreements are, or can be made, enforceable. There needs to be a written agreement for enforceability, but once in writing and signed some jurisdictions accept this as a contract as enforceable as any other. Other jurisdictions require a further process before a mediation agreement can be used as a legal contract, such as lawyers having to write up the document, lodging it with the court, or a judge looking over and agreeing the document.

Box 5: Process of Mediation: Illustrative Examples

Example 5: England and Wales: The Small Claims mediation service is a distance mediation service, conducted by telephone in a shuttle system. It is free to users. Mediation tends to take place over 1-2 hours, if both parties agree to be involved. There are good rates of settlement – around 62% – and satisfaction with the service is high. This kind of distance service allows costs to be kept down. There is some concern that if mediation is made mandatory the service would not be able to cope with demand.

Building a Culture of Mediation

Beyond official routes taken to increase use of mediation (making mediation mandatory, using cost sanctions, subsidising costs so mediation is low or no fee) are some less concrete issues and questions – the less tangible aspects of culture creation – that are worth highlighting. This discussion is informed by conversations with key informants. In the American states there was a strong feeling that a culture of mediation existed, though there was some debate about the strength of this culture; the debate about the legitimacy of mediation was seen as concluded and the discussion was focusing increasingly on how best to mediate and what resources are needed for a quality system. In Canada, Australia, and England and Wales expert voices were rather more divided, with some commentators suggesting that a culture did exist, even if there was always more to do, and others less convinced that the wider public understands mediation. Some of the Canadian literature sees a culture of mediation as strong, particularly in those provinces with mandatory mediation, but also in those provinces with voluntary mediation.[39] It is hard therefore to draw a conclusion that particular kinds of systems – mandatory versus voluntary, for example – create more embedded cultures. Ireland's new Mediation Act means the country is in flux and that further time is needed to assess the impact of the legislation on culture.

A majority of the jurisdictions had a judicial champion of mediation (or ADR) who helped to increase knowledge and understanding, build credibility, push legislation or court rules, and/or encourage further support from the wider legal profession. This champion within the judiciary appears to have been significant to furthering the cause of mediation/ADR – often developing work that was already occurring and using their influence to increase the pace of change and development. In Florida there was general support from the judiciary from the outset for greater use of mediation.

Key informants across all jurisdictions spoke of the importance of lawyers in embedding culture too. Lawyers are key stakeholders in the growth of mediation and their fears and worries were seen to be important to allay, particularly around the potential for mediation to take business and money from them. Key informants across the board spoke of the need to talk to lawyers – and the judiciary – and bring them along with mediators and other stakeholders so that they become a part of the development of any system of mediation: if they are involved and informed they will be more likely to feel buy-in. Essentially, as Professor Catherine Bell from the University of Alberta stated, collaboration with all stakeholders is significant in creating a credible and sustainable system of mediation. This position is backed-up by some of the literature: Hébert argues for the importance of all stakeholders to a mediation system being educated about what it means and its uses, so that their support will help to guarantee the success of the programme.[40]

A number of informants across jurisdictions, though particularly in Maryland, which has a well-developed system of mediation, stressed the need for resourcing and infrastructure.[41] Culture can only be built and sustained if mediation is available in a consistent and ongoing way to the population.

Australian, American, and Canadian key informants tended also to be keen to stress that their mediation processes have developed over a number of decades. If mediation is intended to become a normal part of the civil justice system it will take time to do this. However, this was balanced in England and Wales and Ireland by concerns to keep momentum around mediation and ADR moving, and to decide on a model and pilot it – or actually establish it – without too much delay. There may be room for middle ground between these viewpoints, but these opposing views reflect the different contexts and stages of the debate within the chosen jurisdictions at the point of carrying out this research.


Contact

Email: rachel.thwaites@gov.scot