Lawyer Monthly - December 2021 Edition

67 DEC 2021 | WWW.LAWYER-MONTHLY.COM MEDIATION AND ARBITRATION - THE PITFALLS OF COMPULSORY MEDIATION: TRUST YOUR LAWYER are unrepresented. A problem arises immediately, since a person may declare he will handle his own case, but later decide to instruct a lawyer, while a person who has been represented may lose that representation. As to the first part, there is already a duty for parties to consider ADR at the start of an action, and as it proceeds. There is a duty on advisers to bring this to the attention of their clients, on as many occasions as may be necessary. Our concern in this debate is that those advocating change fail to understand – and so grossly undervalue – the role of the adviser. If the adviser is doing their job properly and keeping mediation at the forefront of discussions, there is no need for any other compulsion in the rules. The adviser will voluntarily do the job which compulsion might be thought to be required to achieve, and will do it in a way which is uniquely suitable to the particular case. To impose compulsion implies that advisers are not meeting their duty and, further, risks altering the delicate balance between an adviser and client. For the second part, the argument for compulsion may appear to be stronger since, as noted above, the idea of mediation may be beyond the experience of an unrepresented individual. It is a proper part of the court’s role not to save a litigant from his or her own folly, but to explain at an early stage that litigation is costly and can be damaging. It may seem attractive to identify cases which should not be litigated, for whatever reason. But there cannot be a rule which applies only to unrepresented litigants and not to others; that would be discriminatory and improper. This shows the difficulty in suggesting that mediation imposition of early mediation ever be appropriate? Further, it is apparent, if only anecdotally, that the attitude to mediation varies dramatically with the type of mediation under consideration. While acknowledging that all mediators must be properly trained and accredited, it is inevitable that some will possess more skill than others. A skilled and experienced mediator, like any skilled lawyer, can command high fees and can select the cases they undertake. Parties to such a case will regard the mediation process as something similar to a court hearing of importance, to which they have consented, and in which they want to participate. It will be held in carefully chosen surroundings, with lawyers present, submissions made, formality observed and decisions reached. This is a very different from the scenario considered in much of the academic work on this topic, where it is assumed that mediators will be provided without charge, at very short notice and for a set and limited period of time, in court or other official premises. Mediation is, currently and generally, a consensual arrangement. Parties may be required to consider it but cannot be compelled to enter into it (with some exceptions which we do not detail here). Research has shown that If parties agree to mediation, it is because they want to do so. To make the process compulsory may change that; if parties agree to something it is likely they will engage with it, but if they are forced into it, they may be less ready to cooperate. We think it is necessary for clarity to consider the issue of compulsion in mediation in two distinct areas; the first is for cases where the parties are represented, and the other is for the balance of cases where parties There is, and always will be, a category of cases – small but often of great importance – where a court hearing is essential.