If you were waiting eagerly for the government’s response to the Settling Disputes in the County Court consultation paper then you’ll have to wait a while longer. It has been put back from the end of October date – no idea if the postponement is related to Mr Djanogly having his referral fee duties removed.
Anyway people have been lining up to say what a bad idea mandatory mediation would be. Lord Neuberger gave a vigorous defence of the right to resort to the courts in a speech last March. He said;
The only way the party in the right can get what he deserves, can vindicate his rights, is to go to court, and any civilized system should ensure that he is able to do so.
Mr Justice Ramsey speaking at the CIArb’s Mediation Symposium this month argued that introducing mandatory mediation would be unwise, stating that “the essence of mediation is that it should be voluntary“.
Speaking at the same event Professor Dame Hazel Genn says that the drive by the government towards mediation is diverting attention away from the cutbacks to the funding of the civil justice system. She is quoted as saying that “Mediation may be about access, but it is not about justice” and that although mediators facilitate settlement they do not provide access to justice.
Here’s what I think:
- I agree with Lord Neuberger – without the threat of the litigation stick what’s the point of settling any claim against you?
- Of course the government is only interested in mediation because it thinks promoting it will save them money.
- Yes the essence of mediation is that it is voluntary.
That’s why – much though I may benefit from it financially – I am against mandatory mediation. The crazy thing about the proposals for mediation information sessions and the like is that everything is already in place – solicitors are obliged to inform clients about ADR and judges are obliged to ensure it is used where appropriate. You don’t need new schemes, you need to use the existing ones.