The phenomenon of mediation: judicial perspectives and eye on the future

Posted: 12/02/2021

This article is the preface to a full paper. The paper, written by partner Rhys Clift, is available in both English and as a Chinese translation. It seeks to explain the alternative routes via which legal disputes can be resolved to the satisfaction of all parties involved, with a particular focus on facilitative mediation. This preface should be read in conjunction with the full paper, both versions of which are linked here.

How disputes are solved obviously lies right at the very heart of dispute resolution. Almost all cases carry a settlement imperative, at the right time, on the right terms, if that can be achieved. Alternative dispute resolution (ADR), and mediation in particular, has assumed an ever-increasing importance in dispute resolution, hence this paper.

It is more than 20 years since the new Civil Procedure Rules were implemented in 1999, following the recommendations of Lord Woolf. This projected mediation to centre stage in the administration of justice in England and Wales.

It is more than ten years since the European Mediation Directive was passed by the European Union (in 2008) to be implemented by the summer of 2011. 

In 2014 the European Parliament issued a report assessing the impact of the Mediation Directive and proposing measures to increase the numbers of mediations in the European Union, of which the UK was then a member state.

In October 2017, the Civil Justice Council in the UK issued an interim report entitled ADR and Civil Justice with the objective of reviewing the ways in which ADR is encouraged and positioned within civil justice in England and Wales to identify ways to encourage the use of ADR, including mediation. The final report was issued by the Civil Justice Council in 2018 and makes an illuminating read. The report concludes, when reviewing the types of ADR available, that mediation “is the principal process for us to consider, operating in the direct shadow of the civil courts. Almost all of the Court decisions about ADR have been about mediation.  Mediation is flexible, massively successful and consistently surprises professionals and parties alike in its ability to achieve settlements where the parties appear implacably opposed.”

During this period, dispute resolution in England and Wales, and mediation in particular, has undergone significant evolutionary change. One example is the development of Early Intervention in 2015. However, there has been yet further huge change by the adoption of Visual ODR, mediation or early intervention online, not solely by text but by live meetings on software platforms such as Zoom, Microsoft Teams and Skype for Business, substantially replicating the original processes but in a radical new manner. This is one of the most noticeable and significant impacts of the Covid-19 pandemic in dispute resolution, commencing in the spring of 2020. (Likewise, the English Courts and, most especially for present purposes, the Business Courts (including the Commercial Court) have rapidly adapted to providing justice online). This is extraordinary, rapid change and much of it is likely to be permanent.

The UK finally left the European Union on the expiry of the transition period on 31 December 2020. There may well be significant changes to the trade relationships of the UK and in English commercial dispute resolution practice as a result.

This is, therefore, a convenient point to assess the use and development of mediation and the materials published for the guidance of users. This is not legal advice for any particular case. Separate legal advice should always be obtained in any particular matter.

Some uncertainly seems to prevail, even now, about what ADR (alternative dispute resolution) is, how the different types of ADR can be compared, and how they respectively interact with one another (if they do), with litigation, and with arbitration. To explain these concepts in the clearest visual way we published ADR, Mediation, Facilitative Mediation and Early Intervention in the era of Covid-19: a Topological Diagram of Dispute Resolution in October 2020 (to view the paper see this link). This is the companion piece abstracted from a new paper entitled “The Impact of Covid-19, Facilitative Mediation, Early Intervention, and the new Visual Online Dispute Resolution”, which is to be published formally shortly.

This is the latest paper in a planned sequence written by the writer as part of a major project commenced about 20 years ago with an At a Glance Guide on Mediation (2001/2) (as co-author), when the process was in its infancy. That was followed by Mediation FAQs in 12 languages (2004/5) and thereafter a series of main papers. These were published at intervals of about five or six years as the process evolved and as ADR, but most especially facilitative mediation, moved to the centre of dispute resolution, where it now sits at the centre of orthodox legal thinking and practice, at the heart of justice in England and Wales.

The English language may now be enormously widespread. It may be the lingua franca of business. But the ability to convey information in the mother tongue of clients, friends and contacts is one of the great courtesies of business and social engagement, even if this can only be offered as a 'free' translation, and thus for guidance only, the core text remaining in English.

China and the Chinese language have become globally ever more important over the last 20 or 30 years. Trade between China and the UK has grown substantially in that period. In the light of all these changes, we are now therefore publishing here one of the main articles referred to in the above sequence: The Phenomenon of Mediation, Judicial Perspectives and an Eye on the Future. This article was first published in the Journal of International Maritime Law in 2010. The publication here, however, contains both the original English text and, given the importance of the language, a 'free' translation into Chinese. This is also published now to mark the advent of the Chinese New Year on 12 February 2021 (the year of the Ox).

The Chinese text is provided for illustration only. If there is any inconsistency between the English and the Chinese text, then obviously the English text is the text to which one should refer. Again, this publication is not in the nature of legal advice for use in any particular matter. If legal guidance is needed by any reader for any particular matter, separate legal advice should be obtained.

The enclosed paper is deliberately short and concise, in order that the reader can readily absorb some of the core information on mediation, principally facilitative mediation. Although the original paper was published in 2010, it was deliberately drafted to contain a substantial amount of generic content, much of which remains valid today. This paper is also available in French and Italian (Spanish is to follow). The intention is, for example, that multiple parties, perhaps engaged in the same dispute, should be able to read the same concepts, but each expressed in their own language, in 'free' translation format as a guide to the English text.

It is always important that those involved in legal disputes (whether domestic disputes, disputes of a personal character or complex international commercial disputes) should understand the procedures by which those disputes are resolved. In order to play it is essential to understand the rules of the game; mediation is no exception. This paper together with the 'free' translation into Chinese, as well as the Topological Diagram and the Covid-19 Impact paper, when published, are intended to facilitate such an understanding.

The Chinese translation of the full article has been co-written with Samuel C. Ding, Dihuang Song and Justin Cheuk.

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