Mediation Law

Journey through Institutionalism to Juridification

Penny Brooker

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136018961
• Edition: 1
• Topic: Droit
• Subtopic: Règlement extrajudiciaire des litiges

In England mediation became a key part of the civil justice reform agenda after the Woolf Reforms of 1996, as disputants were deflected from litigation towards settlement outside the court system. The Civil Procedure Rules (CPR) give courts the power to 'encourage' mediation through judicial case management or use stronger measures by using costs to penalise parties who act unreasonably by refusing to use ADR or mediation. One of the effects of this institutionalisation is an emerging case law that defines how mediation is practiced as it is merges with the litigation process. When mediation first began to be used in England the parties either agreed to mediate by a contract before a dispute happened or decided to attempt the process as a way of resolving disagreements. Inevitably, some disputants either refused to abide by their contractual obligations or would not follow through with the settlement agreements reached through the process. This brought the authority of the law into a new area and the juridification process began.

This book explores how mediation law shapes the practice of mediation in the English jurisdiction. It provides a comprehensive examination of the legal framework for mediation, and explores the jurisprudence in order to analyse the extent that institutionalisation by the state and courts has led to the monopolisation by lawyers and a further 'juridification' process results. The book includes a comparative legal methodology on the framework underpinning mediation practise in other common law jurisdictions, including the United States, Australia, and Hong Kong, in order to explicate shared or distinctive approaches to mediation.

The book will be of great interest to academics and students of legal theory and dispute resolution.

1 Development of modern mediation

Introduction

Mediation defies a universal definition because of the variant ways that mediators practice¹ but there is a common understanding that it is a process where a third party neutral assists the parties to reach a ‘consensual’² agreement about the settlement of their dispute. Mediation is not a construct of the 20th century and there is evidence of mediatory processes dating back 4,000 years to Sumerian and Chinese cultures.³ When social cohesion is vital, ‘kinship based’⁴ communities from across the continents of Asia, Australasia, Africa and the Americas have mediated their disputes through ‘harmony’, ‘moral persuasion’ and ‘agreement’ rather than adversarial mechanisms.⁵

Mediation has a more recent history as one of a number of processes forming the Modern Alternative Dispute Resolution (ADR) Movement, which has swept, albeit at different tempos, across many countries and different legal systems from the middle of the 20th century to the present day.⁶ A number of factors are responsible for the ‘explosion of ADR’⁷ but primarily in common law countries it is attributed to a response to dissatisfaction with litigation, which is the formal system provided by the State for citizens to access the courts for resolution of their disputes.⁸

Alternative to litigation in Common Law

Litigation in the English and Welsh jurisdiction is based on the Common Law, which uses an adversarial system where the parties bring evidence to the court to ‘prove’ their case, which can then be challenged through cross-examination.⁹ During the 18th and 19th centuries in England, litigation procedures became so technical that Holdsworth described them as ‘a blot upon the legal system’.¹⁰ The complexity of both the evidentiary and procedural rules eventually necessitated a reliance on legal professionals, which is reputed to create delay and expense, and distances people from accessing the courts.¹¹

As the common law courts were centralised this was accompanied by a growth of a specialised legal profession¹² extending their ‘monopoly over conflict resolution’, which also inevitably led to the consequence of increasing legal cost.¹³ Moreover, Woolford and Ratner observe that ‘urbanisation and industrialisation’ provided for an ‘increasingly complex life’ where it became normal for people to seek redress from legal ‘neutrals’, thus allowing lawyers to expand their role in an ever more complex litigation process.¹⁴

The confrontational aspects of litigation in many common law countries eventually led to experimentation with alternatives and the promotion of mediation, which has been tailored from a ‘community based system’ to a ‘dispute resolution technique’ used in a myriad of settings including family and commercial disputes.¹⁵ Mediation is recognised now as the principal ADR process utilised for legal reform in many common law countries but many civil law countries have also witnessed an ADR and mediation movement in response to civil litigation problems.¹⁶

Problems with litigation

In England, the problems of costs and delay in court action led to countless quests to reform litigation, which Zuckerman believes have been largely ineffective because of the interests that the legal professions have in retaining the status quo and preserving their costly litigation practices.¹⁷ Nonetheless, ADR became a key part of the civil justice reform agenda after the highly critical review of civil litigation and lawyers’ activities undertaken by Lord Woolf in 1995.¹⁸ The main objectives of the consequent Civil Procedure Rules (CPR) are to divert disputants from litigation towards settlement outside the court system.¹⁹ The CPR provide judges with the power either to ‘encourage’ the use of alternatives including mediation through judicial case management or use more ‘coercive’ measures by using costs to penalise parties who act unreasonably by refusing to use mediation.²⁰

Government and judicial policy has led to the co-option of mediation by the court system, which has initiated a ‘fledging’ mediators’ profession dominated by lawyers who are shaping mediation practice and styles.²¹ Inevitably, the result of the close ‘linkage’²² of mediation with litigation is a developing body of ‘mediation law’ where the courts determine and ‘institutionalise’ mediation practice²³ in the English jurisdiction. The aim of this book is to explore how the courts support mediation practice and how law is delineating when the process should be initiated, upheld by the courts and institutionalised into the litigation process.

This chapter will first discuss the definitional issues surrounding both ADR and mediation. The practice of mediation is not homogenous and there has been experimentation in both process and mediator approach leading to one of the most contentious academic debates in the mediation literature, that of facilitative-evaluative practice.²⁴ In England and Wales, this debate is beginning to have relevance as a mediator profession emerges and as government and legal policies progressively assimilate mediation into litigation. This chapter therefore also reviews the different models of mediation and mediator's styles in order that an analysis can be made of these developments on mediation policy and mediation law.

The chapter will continue by tracing the history of the Modern ADR and Mediation Movements from their formation in the United States of America (USA) in the middle of the 20th century to their transference to the English civil system through a process of experimentation, implementation, institutionalisation and regulation.²⁵ The chapter will briefly review the early attempts to avoid the common law in England as an analogy for the current phenomenon of mediation development before undertaking an analysis of the factors involved in the present interest in the process, as it forms part of the civil justice reform agenda. A review will be made of the problems o...