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Mediation in Civil Cases

View profile for Luigi Bernardis
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Of the several issues that undermine the civil justice system, the perceived failure to provide efficient and expedite justice is a pressing concern (Genn, 2010). Towards the end of the twentieth century, as budgets cutting and legal expenditures were increasing, the practice of mediation was popularized to reduce the financial burden of the numerous civil cases in courts. In the UK, the vast majority of civil disputes (90%) are settled out of court (Genn, 2010). As the British legal system has witnessed a drastic increase in formal proceedings in the past few decades, alternative methods such as mediation and conciliation have increasingly been used to alleviate the burden of cases. With the passage of the Courts and Legal Services Act in 1990, new procedural changes that promoted early out-of-court settlements in civil and commercial disputes were introduced (Genn, 2010). In particular, commercial mediation has received significant attention since the campaigning success in the 1990s; through Lord Woolf’s Reports on Civil Justice, early settlement aimed at avoiding court proceedings was deemed the most suitable option to resolve civil cases (Genn, 2010). Consequently, the civil reform that followed Lord Woolf’s work revolved around mediation being the most important element to be incorporated in the civil justice system in the UK.

Although there are several definitions for the practice of mediation, Wall and Dunne (2012) define it as the “assistance to two or more interacting parties by a third party who — at that time — has no power to prescribe agreements or outcomes” (p. 219). In other words, mediation in civil courts is an alternative practice to judicial processes and adjudications, which allows to resolve disputes in a cheaper and quicker way (Genn, 2010). Indeed, this practice has been shown to be effective in the resolution of an array of civil claims, such as trust, property, employment, and insurance disputes (Cortes, 2015). However, the lack of mandated laws regulating mediation practices in civil disputes in the UK has prevented the development of standardized and extensive training for mediators. Since the number of trained mediators was relatively low, and a restricted number of mediators would voluntarily uptake mediation in civil cases, the British government attempted to render mediation mandatory in civil disputed in the 2000s (Genn, 2010). The reason behind this drastic change in the handling of court cases was that parties would have been forced to discuss the dispute in the hope of agreeing on a settlement before the case had to resort to civil court. Although mandatory mediation was ruled unconstitutional by the Court of Appeal in Halsey v. Milton Keynes General NHS Trust (2004) and evaluations of its effectiveness yielded mixed results, this practice holds the potential to be established as an alternative to civil court (Genn, 2010).

As emphasized by Wall and Dunne (2012), the process of mediation progresses following multiple stages. First, the mediator selects specific goals depending on the type and severity of the dispute. Examples of such goals may include improving the relationship between two or more parties, problem-solving, reaching an agreement, and overseeing social justice (Neves 2009; Wall & Dunne, 2012). Not only do mediators guide the parties throughout the process, but they also have to choose the most effective strategy to ensure that mediation proceeds smoothly (Wall & Dunne, 2012). Furthermore, the mediator’s ability to adopt the most suitable technique influences the likelihood of the process being successful; indeed, the ultimate goal is for the disputants to reach an agreement that settles the initial dispute, without having to resort to legal proceedings or trials (Wall & Dunne, 2012).

Mediation in small civil cases starts with the agreement of both parties to make use of this practice to settle the issue (HM Courts & Tribunals Service, 2020). Depending on the case, the judge that reviews it may refer the case for mediation. Indeed, mediation may only occur after a claim has been made or received. During mediation appointments, the mediator conducts a variety of tasks, such as listening to the parties and facilitating an agreement. The parties involved also play a significant role in the successfulness of the transaction; they should be willing to compromise and work with the mediation to find a solution (HM Courts & Tribunals Service, 2020). Once both parties have reached a verbal agreement, the mediator may proceed to writing a settlement agreement, that is, a legally binding document that contains the terms of the agreement. Should a party violate the terms listed in the settlement agreement, the other party may request a formal hearing. Hence, it appears evident that mediation may be advantageous in resolving small civil cases as it allows parties to work towards an agreement, while avoiding long waits for court hearings.

As previously mentioned, the practice of mediation has been implemented and is currently gaining momentum worldwide. However, empirical research that analyses the effectiveness of mediation practices in resolving civil disputes is still limited. Therefore, it is essential to enhance the focus placed upon mediation research; as this practice appears to be a valid alternative to civil proceedings and trials, it is essential to analyse it from a scholarly perspective to identify further strengths and weaknesses to address. Therefore, future research should thoroughly evaluate the aspects of mediation that should be improved, as to further expand its scope and practice.

References

Cortes, P. (2015). The promotion of civil and commercial mediation in the UK. University

of Leicester School of Law Research Paper, 15–23.

Genn, H. (2010). Civil mediation: A measured approach? Journal of Social Welfare &

Family Law, 32(2), 195–205. doi: 10.1080/09649069.2010.506314

HM Courts & Tribunals Service. (2020, September 28). Small claim mediation service.

https://www.gov.uk/guidance/small-claims-mediation-service

Neves, T. (2009), Practice note: Community mediation as social intervention. Conflict

Resolution Quarterly, 26, 481–495. https://doi.org/10.1002/crq.244

Wall, J. A., & Dunne, T. C. (2012). Mediation research: A current review. Negotiation

Journal, 28, 217–244. https://doi.org/10.1111/j.1571-9979.2012.00336.x

 

Disclaimer: These articles are for information purposes only and are not intended as legal advice. Professional advice should always be obtained before applying any information to particular circumstances.

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