Mediation v Litigation

‘The emphasis should be on resolution rather than the dispute’:   this from the top of the judiciary, Sir Geoffrey Vos (Master of the Rolls), speaking at the Civil Justice Council meeting in December 2020.

Mediation, resolution, settlement should be an integrated part of the whole legal system – and they should be considered at every stage.  The process should be about achieving a resolution than exacerbating who is right about the dispute. This is the gist of Vos’s message to lawyers and the judiciary.  Music to the ears of every mediator – if not every litigator.

It took me many years of litigating employment disputes to learn that, as Vos says, the ultimate object should be to resolve all sorts of issues without costs and the stress of the traditional set piece hearings.  Perhaps I was a slow learner – but there are a lot of slow learners out there in the legal world.

In many cases both parties ‘know’ they are right and will win.  I have seen this so many times in judicial mediation because, at least partly, that is what they have heard from their lawyers – or they have been told to tell their opponent.  Of course, one of them will be wrong and the uncertainty about who it is, together with stress and costs of a tribunal hearing, must be good reasons for settling the dispute.

The first thought in lawyers’ minds should be how to resolve their client’s dispute.  That means abandoning the adversarial nature of litigation and having a constructive conversation with the other side, focusing on solutions, not the rights and wrongs of the case.   It may not provide as much income for lawyers but it will remove a lot of stress in their lives as well as the lives of their clients.

As Abraham Lincoln said:

Discourage litigation. Persuade your neighbours to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good person. There will still be business enough.

I favour of a more inquisitorial system as, I understand, is Baroness Hale. This fits in with the focus on resolution at all stages.  

To achieve the resolution agenda a lot needs to change:

  • Legal education should integrate dispute resolution into every stage of legal training,
  • Resolution should be raised by lawyers and the judiciary at the beginning of all litigation,
  • The judiciary should be trained in resolution options at every stage,
  • Mediation should be offered in all – or most – civil disputes and the parties should be expected to explain why they do not want to not engage; there may be a good reason,
  • Litigants in person should have access to advice about the advantages of mediation

And finally, we need to remember – particularly in  Covid times: ‘Life’s too short to litigate’.  This is the strapline for Your Employment Settlement Service, a unique legal charity (established in 2014). YESS advises employers and employees how to resolve workplace disputes without litigation, as well as offering mediation. We know it works.

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