It was determined that this form of alternative dispute resolution (ADR) is not a concept at the forefront of parties’ minds as a means to concluding litigation. Reasons given were that too many lawyers see the process as flawed, too many clients want their day in court and too many mediators are failing to convince those involved that they can offer a tangible benefit.
The report acknowledges that to date, efforts made to make ADR integral to the litigation process “have been extremely patchy” and that measures to encourage mediation – signposts, threats of sanctions and professional obligations on lawyers – are well crafted and thought out, but ultimately, not working.
Making mediation compulsory has previously been discussed and subsequently dismissed. However, the working party makes clear in their report that this conversation is needed again. It is suggested that there are those who would support moves to ensure ADR is a condition of access to courts or progress beyond a case management conference.
Currently, clinical negligence and personal injury claims make up just 1% of mediator caseloads.
Ultimately, mediation is all about compromise, which is lost the minute you go to court and the outcome of the case turns on the opinion of a single judge sitting alone. Therefore, it is surprising there is not more uptake given the risks and costs of proceeding to trial.