Lawyer Monthly - December 2021 Edition

66 WWW.LAWYER-MONTHLY.COM | DEC 2021 MEDIATION AND ARBITRATION - THE PITFALLS OF COMPULSORY MEDIATION: TRUST YOUR LAWYER In the constant evolution of civil litigation procedure, mediation has found an expanding role, and the question of if and when to make mediation compulsory is a pressing topic. But that is also a complex andmany-faceted question, involving issues of practicality, advisability and legality. The problem with analysing and, subject to that analysis, amending the current rules, is the nature and breadth of civil litigation itself. The facts behind cases are so diverse, the parties involved are so different, and any attempt at categorisation becomes so broad and consequently of so little assistance, that it is almost impossible to identify rules which could apply to all. There is no doubt that mediation can The Pitfalls of Compulsory Mediation: Trust Your Lawyer be valuable, allowing parties to engage in the process and to reach solutions which are acceptable to them, probably early in the litigation process, probably saving them cost. Parties to mediation may feel themselves in control, rather than merely subject to their solicitor or counsel, and mediators may suggest solutions which the parties find acceptable but which a court could not order. But this is little more than platitude. Unrepresented parties may not understand the concept of mediation and may regard voluntary participation as a sign of weakness; parties to high-value claims may regard it as no more than a tedious procedural layer to be dealt with at the lowest possible cost and with the least possible time wasted. There is, and always will be, a category of cases – small but often of great importance – where a court hearing is essential. Could a blanket In June this year, Sir Geoffrey Vos, chair of the Civil Justice Council, suggested that mediation be made compulsory as part of all commercial litigation. The idea has been hotly debated, with various legal practitioners supporting the proposal as a potential solution to the rising case backlog faced by UK courts. But is it really such an obvious solution? Below, we have the pleasure of hearing from Ann Benzimra, partner at Fieldfisher. As an experienced participant in mediation, she offers her thoughts on the practical side of mandatory ADR and why she believes such a measure might do more harm than good.