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Mediation – an opportunity not to be missed?
June 5, 2013
Much has been written recently about the Government’s proposals to change the availability of legal aid. Some judges have identified the problems of the absence of legal aid for those who pursue litigation in person. After describing as ‘depressing’ the difficulties the judiciary find in dealing with litigants in person, Sir Alan Ward in the case of Wright v Michael Wright Supplies Ltd & Anr [2013] EWCA Civ 234 talks about the parallel track of mediation which is ‘intended to meet the modern day demands of civil justice’. He goes on to say,
“The raison d’être (or do I simply mean excuse?) of the Ministry of Justice for withdrawing legal aid from swathes of litigation is that mediation is a proper alternative which should be tried and exhausted before finally resorting to a trial of the issues. I heartily agree with the aspiration and there are many judgments of mine saying so. But the rationale remains a pious hope when parties are unwilling even to try mediation. Judge Thornton attempted valiantly and persistently, time after time, to persuade these parties to put themselves in the hands of a skilled mediator, but they refused. What, if anything, can be done about that? You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer”.
So what is the answer? Something happens in a dispute. Resentment, grudges and a sense of being ‘right’ fuel the reluctance for either party to see the dispute through anyone else’s eyes. The challenge for the mediation community which is gradually becoming more established in UK, is to open the eyes of people in a dispute whether it is heading for the court track or has already been there. Mediation does not necessarily appear more friendly or desirable when it is first suggested to an aggrieved party. Nor is friendliness an inducement when what a party wants is a hard fight at the end of which he or she is declared the winner. So the current challenge for mediators is to convince those in a dispute that there is the opportunity to win something at mediation and if it isn’t tried, how can they be sure they aren’t missing an opportunity.
