1

A mere acknowledgement of understanding that parties have heard facets of a case can go a
long way as viewed in words of Julie Williamson stating, “Resolving a conflict is about
solving a breach of trust once shared by parties who had a long history of trust prior to
this.1” This understanding is mostly shadowed and overlooked in court trials as the only
motive is to get a winning title not a proper solution.

Introduction
The civil justice system covers a wide area of law, namely, contract, family, property, tort,
and even equitable claims which inevitably adds to the piles of cases with the addition of
pressure to move up hearing dates, schedule it according to urgency, dragged hearings and
many more. This is so because, there was the absence of other interventions of alternative
resolutions. As such, the civil justice system (CJS) has suffered with hearings of fights than
resolutions that can go on for years. This suffering initiated the ‘access to justice 2’ by Lord
Woolf in 1986 of alternative dispute resolutions (ADR).

ADR arose from Frank Sander’s paper Variety of Disputes3. ADR has thus far been the
exorbitant frequently used mode of resolution. There are various types of ADR, namely,
Arbitration, early neutral evaluation, Expert determination, Mediation, Conciliation, Neutral
fact finding, Ombudsmen, and Utility regulators that allows resolutions to be achieved
faster, in an efficient manner. This approach has saved a lot of the court time and money as
parties have the option to settle matters ‘out of court’ which tends to also offer a wider
range of outcomes. It has been a favorite option as opposed to court proceedings as its less
adversarial and cheaper. Admist the range of options ADR has to offer; mediation has been
one that is popularly used.

What is Mediation?

1
Williamson J, ‘The ADR Effect’ (2018) https://crs-adr.com/wp-content/uploads/2018/01/Quotations-article-
Trial-Talk-DEC-JAN-2016-2.pdf
2
Slapper G and Kelly D, The English Legal System (19th end Bell & Bain Ltd, Glasgow 2020) 584
3
Sander, Frank E.A., 'Varieties of Dispute Processing', in Art Hinshaw, Andrea Kupfer Schneider, and Sarah
Rudolph Cole (eds), Discussions in Dispute Resolution: The Foundational Articles (New York, 2021; online
edn, Oxford Academic, 17 June 2021)
2

Mediation is a form of ADR that requires negotiation to take place between parties and is
mediated by a third party. This third party is impartial and takes upon the role to make sure
there is no unnecessary communication that may lead to further hinderance in achieving a
favorable outcome for both parties. The mediator may move between parties,
communicating their opinions and wishes without them having to meet 4. Alternatively, they
may also mediate in the presence of both parties guiding the path in achieving a shared
agreement.

Mediation has not only shown tremendous success rates in various areas of law but also
encourages negotiations to reach a resolution and more importantly, places the duty of
negotiation on the parties itself. This form of ADR is known to be a net that saves many
disputing parties the cost of their relationship and from burning a hole in their pocket.

Progression of Mediation
The process of mediation is practiced in various countries and even made compulsory in
countries like India where a The Mediation Bill (2021)5 was set out making mediation a
compulsory step prior to opting for a court proceeding. In Australia however, mediation was
made a compulsory6 step especially in dealing with Family Law cases. Although the decision
of the mediator is not legally binding in the courts of law. The mediator helps both parties to
explore their options in a private and non-confrontational, low-pressure atmosphere.
Parties split the expenses for mediation and in the event that the circumstance can be
settled it will be less expensive than proceeded with litigation. Finishing the conflict with a
pleasing resolution at the mediation stage advances future sound connections between
parties, particularly in family law matters in light of the fact that the battle of litigation in
court was disposed of.

Role of Mediation in the CJS

4
Slapper G and Kelly D, The English Legal System (19th end Bell & Bain Ltd, Glasgow 2020) 584
5
The Mediation Bill (2021) https://prsindia.org/billtrack/the-mediation-bill-2021
6
An Australian Government Initiative (2006) https://www.familyrelationships.gov.au/separation/family-
mediation-dispute-resolution
3

Admist the success rate in achieving its purpose, the CJS did face some initial difficulties and
was known to “continuously fail7” upon the Ministry of Justice’s attempt to develop a
Mediation Helpline in assisting individuals for an easier access to mediation via a phone call.
This was then quickly replaced by the National Mediation Helpline8 in 2008 as the former
was not achieving its purpose as it did not have the presence of an accredited mediation
provider that the latter had. This provided immense efficiency in the CJS as callers were able
to gain information with regards to cost of the case, best forms of ADR anywhere around
England and Wales. This service was not free but most definitely did not cost as much as
hiring a lawyer. The surcharge to this also disabled any unwanted, wasteful calls.

The process of mediation is practiced in various countries and even made compulsory in
countries like India where a The Mediation Bill (2021)9 was set out making mediation a
compulsory step prior to opting for a court proceeding. In Australia however, mediation was
made a compulsory10 step especially in dealing with Family Law cases. Courts have
constantly promoted the use of ADR in different stages of a settlement as seen in the Civil
Procedure Rule 1.4(2)(e) sets out that courts should encourage the use of ADR where it was
deemed fit.

Although courts encouraged the use of ADR, parties were not forced to use it as portrayed
in the case of Halsey v Milton Keynes General NHS Trust (2004). This set a standard
precedent that although the process of ADR is highly recommended it, does not, in any way,
compel parties to go through it as parties are entitled to a right to a fair trial as per Article 6
of the Human Rights Act (1998). Although this approach was partially adopted by the
Australian courts, Frank Sander expressed that the Australian court’s approach was that
“there is a difference between coercion into mediation and coercion in mediation. 11” Having
said that, the freedom of choice gave parties the option which sometimes, defeated the
purpose. Therefore, in most cases, enraged parties ride on the mentality that a court
7
Slapper G and Kelly D, The English Legal System (19th end Bell & Bain Ltd, Glasgow 2020) 587
8
Effective Dispute Resolutions Limited (2011) https://effectivedisputesolutions.co.uk/other-bodies/national-
mediation-helpline/
9
The Mediation Bill (2021) https://prsindia.org/billtrack/the-mediation-bill-2021
10
An Australian Government Initiative (2006) https://www.familyrelationships.gov.au/separation/family-
mediation-dispute-resolution
11
Sander F (2018) https://hls.harvard.edu/today/memoriam-frank-e-sander-52-pioneer-field-alternative-
dispute-resolution-1927-2018/
4

proceeding will deliver the speediest verdict, which is the CJS helped tremendously as,
parties are invited to apply for a stay of proceedings when filling out the Allocation
Questionnaire.

Mediation Contribution
Although mediation is not compelled, courts will act if this step is dismissed without proper
evaluation as seen in a very recent case of Richards and another v Speechly Bircham LLP
(2022) where the defendant in the case refused four requests to participate in mediation
which resulted in a cost order as mediation was necessary. This was implemented in the CPR
44.5 which states parties will be penalized with a cost order if the court believed that ADR
was appropriate for the said case. Recently, it was argued that the party refusing mediation
should be liable for the cost following the cost order as seen in the case of Epoq Legal Ltd v
DAS Legal Expenses Insurance Co Ltd (2022).

This encouragement of mediation is vital as in a secure, controlled setting overseen by the

mediator, mediation enables parties to directly communicate perceptions, feelings, and
information to one another. Mediation offers confidentiality that creates an atmosphere of
cooperation and problem-solving is facilitated by the mediator. This form of communication
frequently lessens animosity and encourages reasoned debate. During mediation, the
parties feel more in control of the conflict and its resolution. A very effective method of
resolving disputes is mediation. The factual and legal developments that would probably
take months to emerge in court can be "compressed" in the mediation process within a few
days as seen many family law disputes. The confidentiality is highly needed in these
situations as parties need the option to reconcile or separate amicably highlights the need
for confidentiality, unless there is a criminal factor involved as seen in the case of Callaghan
v Hanson-Fox (1991).

The involvement of the principals on both sides of the process is another advantage. Unless
the mediator decides to keep them apart owing to intense hostility or for other reasons,
they deal directly with one another. More importantly, mediation was of a great use during
the unprecedent period of COVID-19 which was new to both the legal system and business.
Mediation enabled cases to be mediation on an online platform or through a helpline as
5

aforementioned. This initiative enabled mediators to guide the parties in drawing up a

document that moves them out of their difficulties and reach a solution that is acceptable to
everyone as seen in Lomax v Lomax (2019) which will not only allow business to continue
but frequently helps parties salvage what was previously a beneficial relationship.

Additionally, each party has the chance to express its commercial objectives and interests,
as well as its legal stance and opinions on the conduct and issues at issue. Nonetheless,
problem-solving and creating a customized solution are the main priorities 12. Instead of
relying solely on legal precedents or factual disagreements, business conflicts are frequently
settled based on underlying corporate interests and concerns. Long-term relationships can
be preserved or even improved through mediation, in addition to resolving specific
conflicts.

Michael Kallipetis QC stated that “percentage of cases have been resolved by remote
mediation is more than from traditional mediations. 13 ” He also observed in the
case of Kelly v Kelly (2020) that he was able to read a person via a screen just as
well as he did in person.

When compared to other methods of resolving disputes, mediation is both quicker and
more adaptable because it can be conducted wherever and whenever is most convenient
for the parties involved. Second, the disputing parties may receive closure and the
opportunity to come to an agreement and put their differences behind them. They won't
have to worry about a question for an indefinite amount of time thanks to this, which may
aid in the healing of their personal and professional relationships. Thirdly, mediation saves a
lot of judicial time if cases are resolved ahead of schedule through intervention. As a result,
fewer cases will be under the watchful eye of the courts, which will reduce accumulation
and make it possible to organize justice more efficiently. Finally, the ultimate goal of
mediation is to achieve a common goal of settling, which in theory suggests the possibility
of an amicable settlement. The parties' needs and interests can then be the focus of
negotiations, as opposed to the typically contentious case merits.
12
Handbook of Dispute https://mediate.com/the-history-of-mediation-and-why-it-is-still-in-use-today/
13
Morgan B, Post-Covid Mediation: No Way Out? (2021) https://www.blakemorgan.co.uk/post-covid-
mediation-no-way-out-now/
6

Setbacks of mediation
Despite its advantages, once a dispute has arisen the parties often are reluctant to propose
mediation, and adversaries typically find it difficult to agree about anything. Moving on, the
following may also demonstrate that outcomes are not always guaranteed because parties
may not agree to the proposed terms and the mediation process may fail entirely. As a
result, parties would waste time and money without knowing what would happen. Another
significant disadvantage of a mediation process could be the concealment of information.
For instance, one party might not be straightforward by keeping significant data during the
process. A non-official procedure is the weakness of familiarity is that it is every now and
again challenging to foresee how an intercession will unfurl. In addition, if the mediator
lacks skill or experience14, he may make the process interminable and pointless. Moreover,
mediation will not accomplish the goal of gatherings seeking "justification" (which would be
legitimized in an "official courtroom") on moral grounds or considering rule.

Considering this, CPR advises parties forming a business contract to include clauses
stipulating unmediated negotiation and mediation of potential future issues, maybe with
binding arbitration as a backup if mediation is unsuccessful.

Conclusion
With Lord Woolf’s intervention of ADR, the CJS has benefitted more than it has suffered loss.
Hence, mediation in particular has contributed greatly in the progression of CJS especially in
unprecedented times where parties did not only seek for resolutions but also sanity. Thus,
party refusing to mediate needs to ensure that their stance for refusal is reasonable, as
courts will consider any refusal to mediate orders of costs are made subsequent litigation.
As Justice Day O’Connor15 puts it, “he courts of this country should not be places where
resolution of disputes begins. They should be the places where the disputes end after
alternative methods of resolving disputes that have been considered and tried. 16”

14
Mediation to the Civil Justice System (2022) https://thestudentlawyer.com/2022/08/26/how-mediation-is-
used-in-civil-justice-systems-worldwide/
15
Connor S, Collaboration, settlement, resolution (2022) https://blc.law/resources/quotes/collaboration-
settlement-resolution/
16
7