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Legal Incentives to Mediate

Legal Incentives to Mediate

Should there be more nudges and incentives for parties to use mediation?

 

Transcript

Full Transcript

I’m in favour. The Italians demonstrate that that is effective. They move from enforcing mediation until the lawyers rose in protest, had it declared unlawful. It was then reintroduced as an opt in/opt out system and it is producing amazing results in Italy.

 

It is difficult, Aled. I was a party to the judgment in the great Halsey case, where we said you can’t force people to mediate. You can’t make mediation compulsory. In the case where you started with, I had a paragraph on mediation suggesting that the court could look at that decision again. It may be obiter and undoubtedly the European authority, on which we relied, has since been changed in Strasbourg.

 

Be that as it may be, the idea of compulsory mediation brings up all sorts of semantic difficulties. Mediation can’t be compulsory, in as much as, you can’t force people to reach a settlement. The essence of mediation is it’s a voluntary process. Compulsory must be defined properly. Can you force people to consider mediation? I see no reason why you can’t.

 

It’s being done in the family division. It’s being done in the employment tribunals. And, the Ministry of Justice have said they would look at it again for civil mediation. I really can’t see any reason why the judges can’t stay the proceedings for a short period of time. You are not closing the door on their right of access to justice, contrary to Article 6 of the Human Rights Convention, but you stay it to say to the parties, “Go off and think about mediation.”

 

Then, if they refuse to, the so-called Ungley Order, after the Master Ungley, the party refusing should sign a statement there and then, or within a reasonable time after that hearing, saying why not. That can be opened at the end of the trial, if it goes to trial and they’ve lost, or in any event, to see whether it was an unreasonable refusal. If unreasonable, you penalise them with costs. There are ways of incentivising or punishing those who are recalcitrant.

About the mediator

Sir Alan Ward Profile Pic

Sir Alan Ward began his career in the law signing Articles of Clerkship attorneys in Pretoria, South Africa on his 17th birthday. He was duly admitted and practised as an Attorney until 1961 when he left to read law at Pembroke College, Cambridge. Among memorable moments of his time in South Africa, riven as it was by the injustices of apartheid, was his answering the telephone to Nelson Mandela who instructed him to represent his client in an ap... View Mediator

  • mike faulkner

    Ooh Aled you tease. You ended with “now I want to move onto……” What? What?
    Jo Holland is making things happen like never before in mediation. A breath of fresh air. Having had the privilege of joining her project as one of her mediators I can vouch for everything she said in your interview. A very compelling innovation. Well Done Jo.

    • Thanks Mike – I’m sure Jo would appreciate that feedback, I’m always on the look out for innovators as well as experienced mediators to interview and Jo delivered on that. I’m looking forward to hearing about her success, it could provide lots of opportunities for mediators everywhere.

      Part 2 of the interview is up for you to see by the way, hope you enjoy.

      Best regards
      Aled

  • Carole Cracknell

    A really interesting discussion. I loved Jo’s passion and drive. I think the very best solutions come from people who have worked in the field and look for a better way to achieve the right outcome

    • Hi Carole – A lesson to us all. If we combine our passion, with commitment to action and even a half decent idea there’s a good chance we’ll make something happen.
      Thanks
      Aled

  • Denice Houslin

    Loved this! Very inspiring