Whether Mediation Should Be Mandatory In England & Wales

Mediation
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Mediation
Introduction
Mediation refers to the process where a neutral person (the mediator) helps two or more people to discuss and solve disputes. The mediator helps the people in disputes to communicate about their issues and help them find solutions that are fair and acceptable to those involved. The mediator does not have any interest in the outcome and he or she cannot impose a solution. There is no statutory regulation of mediators but they expected to abide by the code of conduct, be insured, be trained, continuously engage in training and development activities also be able to offer and access to complaints process where it is needed. In England and Wales, mediation has become a significant feature in most litigations. Courts in England and Wales are supposed to encourage mediation in appropriate cases. The Woolf Reforms of 1999 made mediation a feature of civil litigation by giving judges the mandate to stimulate the application of mediation in all stages of litigation.[L Cohen, Mandatory mediation: A rose by any other name. Mediation Quarterly, 9(1), 33-46. 2011.]
It seems that there is a movement that is working toward making mediation compulsory in England and Wales. This is because mediation has appeared to the most promising and most effective method of solving disputes at all levels. Although mediation is a simple process used in disputes resolution in many cultures around the world, research has shown that the benefits of mediation are now understood as they were before. Some of the benefits of mediation are that its outcome is more flexible than that of litigation and it also has large benefits of reducing public expenditure and also relieving congestions in the court. Most parties are satisfied with the outcomes of mediation and it is considered to be less stressful than litigation.
Mediation has been endorsed by policymakers and members of the judiciary in both the common and civil law jurisdictions. This has led to many countries worldwide to encourage mediation in both legislation and procedural rules. Measures and opinions adopted by various countries vary concerning how this policy should be implemented. Countries such as Germany, France, Hong Kong, they have limited their measures by educating parties and promoting the possibility of mediation. In other countries such as Italy, Australia, and Canada, before accessing the court, they have undergone mediation. This has become the norm in these countries. In England and Wales, the story is different. Despite the widespread need to use mediation among policymakers and the judiciary, the courts have declined the need of parties to participate in mediation.
Currently, there is resistance to the use of mediation by both the disputing parties and the lawyers. This act of resisting mediation is not only in England and Wales but also in other countries. Based on the success of various jurisdictions that have implemented mediation, it is confirmed that the English lawmakers should re-consider the chances of mandatory mediation to handle this issue. This article aims at analyzing some of the arguments against and for compulsory mediation and show why mediation should be declared compulsory.
The situation in England and Wales
One of the most important endorsements of mediation is found in Access to Justice a report by Lord Woolf. He used mediation to playing an important role in the civil judicial system. Lord Woolf, however, did not state that mediation was to be compulsory but instead he proposed reforms that were implemented in the Civil Procedures Rules that that sought to promote mediation (Butlin, 2000). In England and Wales, there have been debates on whether mediation should be mandatory. In some of the cases in the courts, Woolf stated that parties should not be forced to mediate despite the benefits that come with mediation but instead, the court should in appropriate cases:
• Encourage mediation and state its considerable benefits
• Should direct parties in disputes to meet and discuss mediation
• Should ask the party that fails to mediate to explain why it declines to mediate
• To penalize parties that fail to mediate
Failure of the English civil justice system to use mediation it missed the benefits that come with mediation which include saving on time, cost-saving and many other significant benefits from using mediation. Gains on the civil justice system will only be determined by the type of system to be introduced. Despite the debate on whether mediation should be made mandatory in England and Wales, the imposition of cost sanctions has made it easier for mediation growth.
The advantages of mediation
Saving in cost and time: when compared to litigation, mediation is cost-effective and saves on time. Litigation is time-consuming as it involves time-consuming and complex procedures, interrogations and other pre-trial processes. In mediation, there is no delay in getting justice unlike in litigation where all procedures have been to be followed to reach a final decision. Also, mediation can take place anytime and anywhere, unlike litigation which has to be in the court of law and at official hours.
Flexibility and informality: mediation does not focus its limit on legal claims like litigation. Under mediation, parties are not limited to the solution since they are not confined in any legal remedies. There is an opportunity to explore factors underlying the causes of a dispute unlike in litigation where it is limited to some legal remedies. The informality nature of mediation is beneficial to people who are not equipped with legal rules and processes involved with the litigation process. The formality nature of the court causes stress and also threatens disputants.
Privacy and confidentiality: unlike in litigation where disputes are handled and decisions made in an open platform and at times published, mediation encourages privacy and confidentiality where only the parties involved are aware of what has been discussed and decided. They are bound to keep all the information, feelings and emotions shared among themselves. All the information shared leads to a mutually satisfactory settlement.
Preservation of relationships: in cases where there is a dispute between family members or people close to each other, mediation is the best way to deal with the dispute for the sake of preserving future relationships. Mediation helps them learn the need of working together and in case of any other disputes in future they are more likely to negotiate at the early stages to solve the problem without the need of help from a third party.
Self-empowerment: mediation empowers people when they are encouraged to take responsibility in finding their solutions, negotiating and implementing their final agreement. The parties accept the consequences of their decision because they have control over the outcome. The parties can also withdraw from the process anytime they want. In the case of another dispute, parties are aware of the steps to be followed in solving the problem.
Civil mediation
Civil mediation is under the Civil Mediation Council (CMC) in England and Wales. CMC is recognized for all matters related to workplace civil, commercial and other forms of non-family mediation. In case of any issue related to mediation, the Government, the legal profession and the Judiciary first contact the Civil Mediation Council. CMC is a nonprofit making company by guarantee and only operates as a charity. Civil mediation refers to any other form of mediation that uses the civil mediation process rather than the family model. It is used to solve any form of disputes apart from the family disputes unless under certain circumstances.
Where parties can resolve disputes, the terms of the agreement are written down. The legal action in mediation is over when an agreement has been fulfilled. The agreement may include terms that could not be imposed by the Court. All disputing parties voluntarily and freely enter into any agreement made. Mediation does not always work for everyone. Where parties are not able to resolve the issue in mediation, they can choose to use the litigation process which will be shorter and easier because they had discussed the matter before in mediation. In civil mediation, lawyers are allowed to attend the mediation if all the parties agree. The lawyer educates their clients, develops negotiation strategies, ensures that the solutions reached are workable and assist in many other ways.[B Clark, A tale of two jurisdictions: mediation case law in England & Wales and Scotland. Tijdschrift voor mediation en conflictmanagement, 21(4), 13-26. 2017]
Restorative Justice
Restorative Justice perceives crimes as more than breaking the law since it causes damage to people, relationships and also the community. Restorative Justice aims at repairing the harm that results from criminal behavior. For the repair to harm, parties affected by the crime are asked to meet and discuss the harms and the way to bring about a resolution. Be willing to meet some of the affected individuals can transform their lives. The foundational principles of restorative justice are:
• Crime brings about harm and justice should concentrate on repairing that harm.
• All the parties affected by the crime should participate in the resolution.
• Government responsibility is to ensure that there is order and that of community is to enhance peace.
Aims of Restorative Justice
Victim Satisfaction: it aims at reducing the victim’s fear and ensure that they get justice for the harm done to them.
Engagement with the perpetrator: The perpetrator is the person that has engaged in the crime or has carried out a harmful, immoral or illegal activity. RJ aims at ensuring that the perpetrator is aware of the consequences that arose from their actions. They are given a chance to make reparation and agree on a strategy for their rehabilitation in the community.
Creation of community capital: It aims at increasing public confidence in the criminal justice system. This system delivers a response to anti-social behavior.
Types of Restorative Justice in England and Wales
• Indirect or direct restorative justice processes
The victim and the offender guided by a facilitator meet to communicate face-to-face and resolve the harm caused by the crime. Other people such as the perpetrator and supporters of the victims and the community can be involved. It can also be held as a conference when other people are involved, or indirectly with the facilitator acting as the third party. At the end of the discussion, an agreement is reached to decide on the best way to repair the harm. An agreement on the adoption of a rehabilitative program may be agreed upon.
* Community conferencing
It deals with a large number of people including several victims, the community at large and perpetrators. It is useful in resolving anti-social behavior. In this form of restorative justice, the community as a whole is usually the victim. It is also similar to meetings held by the community to solve problems. It focuses on the harm and the resolution.[Coates and Damas, Family mediation by the community mediation service in Boulder, Colorado. Mediation Quarterly, 15(1), 29-38. 2016.]
• Referral order panel
Under this type of restorative justice, the young people receive a court Referral Order to att...