Mediation – The Lord Justice Jackson review

Lord Justice Jackson’s long awaited review of litigation costs, published today, was widely predicted to toughen up court use of mediation. CEDR, one of the foremost providers of mediation services in the country, lobbied strongly for compulsory mediation at a very early stage with costs penalties against both parties for non compliance.

However, in an otherwise bold report, Lord Justice Jackson chose not to recommend any significant changes to the current way in which Courts deal with mediation. There is to be no Court compulsion to mediate, nor at an early stage in the proceedings. Costs sanctions for unreasonably refusing to mediate will also remain as they are. CEDR’s lobby has been roundly rejected.

Instead Jackson LJ recommends a campaign to promote the use of mediation and an authoritative handbook to explain mediation (along with other types of alternative dispute resolution (ADR)).

Tim Constable, a partner at Matthew Arnold & Baldwin LLP comments: “Lord Justice Jackson’s conclusions will surprise many (and dismay CEDR) but from my viewpoint as a litigator, mediator and mediation advocate, he has made the right call. The system ignores the discretion of the legal adviser at its peril; any additional Court compulsion to mediate at any early stage will result in increasing use of extremely cheap mediation. The cheapest the writer has found is about £250 per party for a one hour telephone mediation, which ticks all the boxes but results in inevitable failure. Increased knowledge of the mediation process is also to be welcomed, if it actually happens.”

What is mediation?

Mediation is the most well-known forms of ADR. It is a formal meeting between the parties to a dispute, conducted in private and “without prejudice”. It usually lasts up to a day and takes place in three separate rooms in the same building. The meeting is chaired by the mediator, an independent neutral appointed jointly by the parties, whose job is not to act as judge or referee, but rather to facilitate dialogue between the parties to help them resolve their dispute. Usually (but not always) there is an initial joint meeting in which the mediator introduces the day and explains the ground rules. Then each party is given an opportunity to say whatever they wish to say to their opponents. The parties then retire to their own rooms and the mediator shuttles between them, exploring the issues and conveying messages including offers to settle. An essential part of the mediation process is that anything which is said to the mediator in the private rooms is kept entirely confidential from the other party – nothing which is said will be passed on except with express permission. This promotes free and frank dialogue. Over 50% of mediations result in settlement on the day or shortly thereafter. The cost of a mediator varies widely, from about £250 per party up to £3-4,000 per party depending on the mediator and complexity of the case.