CAN MEDIATION BECOME THE NORM OF DISPUTE RESOLUTION? (Content writing (Legal/Analytical/Journalistic)

BRIEF PREAMBLE & INTRODUCTION

Mediation, an alternative dispute resolution, involves two or more individuals, groups, businesses or organizations who have had a disagreement and unable to resolve the issues between them. The disputants will meet with an independent/neutral third party who facilitates discussions, encouraging them to reach an agreement.

This article proposes this: while acknowledging the possible limitations, mediation still has an important role to play as a tool in dispute resolution. This article seeks to asses; in the current epoch can mediation become the norm of dispute resolution?

BODY

This article is categorised into PART (1), (2) and (3):

PART (1): Mechanism of mediations

a.    Characteristics

Characteristics of mediation can be adequately understood by looking at the advantage that mediation entails[1]:

1.    Flexible process

2.    Quicker than litigation.

3.    Cost effective.

4.    Can be arranged quickly.

5.    Can take place with the assistances of a neutral third party.

6.    Confidential and private process.

7.    Avoids adverse precedents set by court.

8.    Avoids stress and trauma of litigants.

9.    Preserve relationship between parties.

10. More creative solutions.  

11. Understand and narrow issues.

b.    Purpose of mediation

The purpose of mediation is to of course resolve disputes; an alternative to litigation to meet the needs of individual litigants. It is a common practice to treat legal action as the natural choice when a dispute arises; it can also serve as a fallback plan for any unsuccessful mediation or negotiation[2]. Mediation is suitable for contract disputes, consumer claims, neighbourhood disputes, housing disputes, tortuous claims, regulatory and public sector disputes and family disputes[3]

Part (2) Analysis on the Proponents for and against mediation

a. Proponents against Settlement: 'The Anti-Settlements and Adjudication-Romantics'

There are cases that are not suitable for mediation in general; such limitations are[4]:

1.    Fixation on 'Just' outcome

It is said that mediation does not contribute to 'substantive justice', in the sense that the primal aim of the process itself is to resolve the dispute without emphasis on the forethought of upholding legal rights of both disputants[5].  This makes sense- the role of mediators is to find a common ground and then focus both parties' mind on that common ground to facilitate a solution that tailors to both the interests and needs of the parties.

This might render the whole process and outcome of mediation, to be about rigidly extracting a settlement out of a dispute[6] (without regards of the possible advantages of litigation).

2.    Quality of mediator or the mediation process

It is pivotal for the mediation process to be utilised by both parties in expressing their feelings and interests[7]; instances where the process was not conducted as such, will further aggravate the dispute.

3.    Power imbalance

The positional difference between both parties is potentially detrimental towards the process and the eventual outcome of mediation[8]. For example, parties who enjoys financial or community standings will have the better voice. It is equally pivotal to note that the role of a mediator is to facilitate a settlement without the forethought of its justness[9].   

4.    Access to justice

As aforementioned, the less powerful position of a party in the dispute is a hindrance- to forcefully impose it upon the parties would mean encroaching into the 'right of the parties on their right of access to court'[10]

Professor Dame Hazel Genn mentioned that, "[the] outcome in mediation is not about just settlement, it is just about settlement."[11] In her Hamlyn Lecture, mentioned of her three concerns: firstly, mediation will have higher success rate when the process is entered voluntarily. Second, litigation is still the necessary avenue. Thirdly, that mediation had been set up in opposition to adjudication and promoting it through anti-adjudication and anti-law discourse.

To crystallize this, she recognizes the significance of mediation as a voluntary process and venue for parties in disputes. She felt strongly that ADR can only play a peripheral role beside the judiciary.  However the current legal climate suggests that ADR had been misused to stubbornly reach a solution of a dispute in contrary to the pro-adjudication discourse, meaning to conjure up a settlement regardless of the absence of rationality[12].

Judith Resnik view adjudication as tool for the public to balance power with the ruling government[13]. For Resnik and Curtis, the court is a place where powers are redistributed amongst parties regardless of hierarchy or other social factors. The court seems to be a balancer, in which both parties will be obliged to exchange information and be asked to treat opponents fairly[14].  A critical social practice that resolves disputes, defines and refines the law, reinforces important public values and is itself a defining democratic ritual that works the law 'pure'[15]. This would be deemed a democratic practice- refining and bettering the existing legal framework. 

Owen Fiss stated that ADR[16] trivializes the value of lawsuits and reduces the social function of adjudication. He mentioned that the court's duty extend beyond proving who is right or wrong. The public had conferred upon the judge the duty to advance the spirit of the law itself[17].  

He commented that the fewer judicial pronouncements of law and judicial application of law to facts were direct results of the rise of settlement, unaccompanied by procedural change that would provide for robust pre-trial judicial assessment of the merits of claims. What followed was the diminishing of public confidence in public institutions which inherently stymie the development of public law[18]. Utilizing what Resnik, Curtis and Luban have mentioned early in their premise[19], the hampering of the growth of the law would be against democratic values and practices.

b. Proponents for Settlement: 'The Anti-adjudication and Anti-litigation;

There are obvious attractions to the use of mediation[20]:

Shift of focus:

The involvement of a mediator shifts the mindset of the parties into settlement mode. This can help parties to overcome impasses and deadlocks as it invites the parties to shift to a different position which is to seek settlement instead of insisting on the strength of their own position.

Flexibility:

Mediation provides flexible timing and location for parties to choose from. It has also given the autonomy of the parties in the format or formality of how the sessions are to be conducted.

Overcoming psychological barriers:

The role of mediation in overcoming psychological barriers should not be underestimated. Due its flexible and non-adversarial nature, parties are likelier to reach a settlement.

Creative, partial solutions:

Mediation offers a plethora of solutions that is not provided under the litigation such as letter of apology, declaration of interest, monetary settlement and other variety of solution that can meet the need and interest of the parties. 

Having in mind of the above factors, Carrie Menkel-Meadow suggested that mediation is akin to an ideology and a practice. Menkel-Meadow suggests that not all cases are binary in nature and that the occasionally the usage of litigation to resolve dispute is akin to forcefully dividing the undividable[21].

In another article, Menkel-Meadow mentioned about the problems that entails with the current adversarial legal system. By citing custody cases, she propounds that emotional entities of humans can never be 'divided sharply'[22]. Litigation lacks the remedial imagination that can fulfil each party's interest. The postmodernist way of discovering truth and way of reaching a conclusion suggests that truth cannot be "represented" accurately[23].

She stated that the existence of ADR and other forms of legal process "reflects our collective dissatisfaction, for a wide diversity of reasons, with the traditional adversary model and our current postmodern penchant for "many methods," when one will not suffice."[24] Perhaps a system that is more sensitive to the particular postmodern needs of parties and the particularities of cases should be created

Fred Rodell commented on Jerome Frank's article echoes similar views: he explains that the adversarial elements in advocates would significantly hamper the aim for accurate fact finding in cases[25]. It is due to this that when it comes to oral testimonies, 'a myriad of fluid, unreliable, distorting human factors' will disappoint the finding of the case based on real and actual facts of the case[26].

To echo the above sentiments, settlement rate of mediation has remained constant since 2014, being in the cusp of 86% after using mediation.[27] This palpably showed that mediation is indeed one of the preferred options to settle civil disputes compared to litigation.

Part (3) Conclusion

The discourse on whether mediation can be treated as a norm for dispute resolution is still pulsating. This article advocates a middle approach- proponents from both spectrums should settle to the fact that the regime of mediation and litigation should work in a synergy at this day and age.

Proponents for litigation should recognize that process of mediation[28], can itself also serve as 'a democratic practice- an odd moment in which individuals can oblige others to treat them as equals as they argue.' Instead of viewing litigation as the only venue to achieve this purpose, it should be accepted that mediation can serve to achieve the same. With successful cases achieved under mediation, mediation has had gravity to stand equal with litigation as a tool to resolve dispute. It is even safe to say; that mediation, with its accompanying advantages and disadvantages, had grown into a democratic right at is exercisable by the public. Instead viewing mediation as an obstacle that stymies the growth and degrades the quality of the legal system, mediation should be view as an apparatus, similar to a litigation process, which can add value that fits well into the legal system of the UK. It will serve as a levelled platform for discourse.

Proponents for mediation should have regards with the fact that the success of a mediation session is highly dependent on the willingness of the parties to convene and whether the mediation can fulfil both parties' needs and interest. The draw of mediation today has been attributed to its flexibility and plethoric nature of the settlement that can reached- without the confines of the law, mediation is basically a 'settlement chameleon'. Hence, it serves no purpose to push mediation through as the only mean of resolving dispute because this will go directly against the very notion that was advanced by mediation itself- flexibility.

An honest assessment is needed vis-à-vis the reasons behind the general disdain towards mediation or ADR as a whole. Drawing the contention between the rule of law and procedural justice being the reason behind the general disdain towards the usage of ADR, Tom R. Tyler is in the opinion that these two entities are 'neither irreconcilably at odds with ADR nor seamlessly reconcilable with it'[29].

Tyler had not indulged himself in the debate on the efficiency of ADR like every other proponent did. Instead, he suggested 'that the assessments of procedural justice by disputants in ADR systems are a critical element in ensuring that ADR exists in harmony with rule of law values even as ADR, by its very terms, does not produce resolutions that arise directly from the rule of law per se'. He takes the view that disputants' understanding of procedural justice intertwines with the meaning of rule of law[30].

In conclusion, this article agrees with the notion that mediation can be the norm of dispute resolution but suggest strongly against fixating on mediation alone. The underlying notion for mediation is noble- it promotes a society of peace and security. purging adversarial elements. The notion is definitely not an over-optimistic and impractical one- as mediation is a the brainchild of democracy and a fairly new creation as compared to its cousin, a mature society is needed for mediation to be fully utilized of its potential in achieving peace and security. This article advocates the use of mediation and litigation concurrently and in supplement of each other for the society to develop maturely[31] at a steady pace, taking what Tyler had generated through his discussion regarding the antagonism of rule of law and procedural justice[32]. Relative, continuous and significant reforms are also pivotal.[33]

                                                                                                           

        (2000 words; excluding cover page and bibliography)

BIBLIOGRAPHY

Aubrey-Johnson K & Curtis H, Making Mediation work for you a practical handbook (LAG Education and Trust Limited 2012) 46-47.

Blake S and others, A Practical Approach to Alternative Dispute Resolution (4^th edn, Oxford 2014) 229-230.

CEDR, The Seventh Mediation Audit (11 May 2016) 1, 3 & 7.

Fiss O.M, Against Settlement (1984) Yale Law School Faculty Scholarship Series, 1082.

Genn H and others, Twisting arms: court referred and court linked mediation under judicial pressure, MOJ Research Series 1/07, 2007 p iii; Justice Select Committee, 6th Report, Operation of the Family Courts, June 2011, para 123.

Glover J.M, Disappearing Claims and the Erosions of Substantive Law (YLJ 2015) 3052.

Menkel-Meadow C, The Trouble with the Adversary System in a Postmodern, Multicultural World (1996) vol. 38 Issue 1, William & Mary Law Review 5, 6-7.

Quoted in  Luban D, Settlements and the erosion of the public realm (1995) vol. 83, Georgetown Law Journal, 2638 (as cited in Hazel Genn, Judging Civil Justice (CUP 2010) 23).

Resnik J & Curtis D.E, Representing Justice: From Renaissance Iconography to Twenty-First-Century Courthouses (2007) Yale Law School Faculty Scholarship Series 139, 175

Rodell F, Courts On Trial: Myth and Reality in American Justice, by Jerome Frank (Fall 1949) vol 25 Issue 1 Article 13, Indiana Law Journal 114, 119. (as stated "[To] treat a law-suit as, above all, a fight surely can not be the best way to discover the facts.")

Rozenberg J, 'Dame Hazel Genn warns of 'downgrading' of civil justice' (The Law Society Gazette, 18 December 2008. https://www.lawgazette.co.uk/analysis/dame-hazel-genn-warns-of-downgrading-of-civil-justice/48739.article accessed 29 June 2017.

Tyler T.R, Procedural Justice and the Rule of Law- Fostering Legitimacy in Alternative Dispute Resolution (2011) Paper 4992 Yale Law School Faculty Scholarship Series 1, 2.  

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[1] Susan Blake, Julie Browne & Stuart Sime, A Practical Approach to Alternative Dispute Resolution (4^th edn, Oxford 2014) 229-230.

[2] ibid 6-7.

[3] Susan Blake, Julie Browne & Stuart Sime (n 1) 229.

[4] K Aubrey-Johnson & H Curtis, Making Mediation work for you a practical handbook (LAG Education and Trust Limited 2012) 46-47.

[5] ibid.

[6] K Aubrey-Johnson & H Curtis (n 4) 46-47.

[7] Hazel Genn et al, Twisting arms: court referred and court linked mediation under judicial pressure, MOJ Research Series 1/07, 2007 p iii & 119.

[8] K Aubrey-Johnson & H Curtis (n 4) 47-48.

[9] ibid.

[10] K Aubrey-Johnson & H Curtis (n 4) 48.

[11] Joshua Rozenberg, 'Dame Hazel Genn warns of 'downgrading' of civil justice' (The Law Society Gazette, 18 December 2008. https://www.lawgazette.co.uk/analysis/dame-hazel-genn-warns-of-downgrading-of-civil-justice/48739.article accessed 29 June 2017.

[12] ibid.

[13] Judith Resnik & Dennis E. Curtis, Representing Justice: From Renaissance Iconography to Twenty-First-Century Courthouses (2007) Yale Law School Faculty Scholarship Series 139, 175. (as stated in1^st para "Individuals have entitlements to call governments to account, publicly, for wrongdoing. However powerful they may be when outside courts, when private-sector and public-sector actors come into court, they become subject to rules that oblige them to exchange information and to treat their opponents fairly")

[14] ibid. 

[15] Quoted in D. Luban, Settlements and the erosion of the public realm (1995) vol. 83, Georgetown Law Journal, 2638 (as cited in Hazel Genn, Judging Civil Justice (CUP 2010) 23).

[16] Negotiation, mediation and arbitration.

[17] Owen M. Fiss, Against Settlement (1984) Yale Law School Faculty Scholarship Series, 1082.

[18] J. Maria Glover, Disappearing Claims and the Erosions of Substantive Law (YLJ 2015) 3052.

[19] cf note 13 & 15.

[20] Susan Blake, Julie Browne & Stuart Sime, A Practical Approach to Alternative Dispute Resolution (4^th edn, Oxford 2014).

[21] C. Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World (1996) vol. 38 Issue 1, William & Mary Law Review 5, 6-7.

[22] ibid 7.

[23] Menkel-Meadow (n 21) 16.

[24] ibid 43.

[25] Fred Rodell, Courts On Trial: Myth and Reality in American Justice, by Jerome Frank (Fall 1949) vol 25 Issue 1 Article 13, Indiana Law Journal 114, 119. (as stated "[To] treat a law-suit as, above all, a fight surely can not be the best way to discover the facts.")

[26] ibid 117.

[27] CEDR, The Seventh Mediation Audit (11 May 2016) 1, 3 & 7.

[28] Which involves reaching a settlement between disputing parties,

[29] Tom R. Tyler, Procedural Justice and the Rule of Law- Fostering Legitimacy in Alternative Dispute Resolution (2011) Paper 4992 Yale Law School Faculty Scholarship Series 1, 2.  

[30] ibid. Here, Tyler also gave his definition of the rule of law.  

[31] C. Menkel-Meadow (n 21) 42. (as stated "[a] cultural change is required, and that is not easy to legislate.")

[32] Tom R. Tyler (n 29) 8-12.

[33] C. Menkel-Meadow (n 21) 43. (as stated "I do not think that any one micro-reform or any single process will successfully supplant and replace the adversary system. I hope, however, that the post-postmodern legal system will give parties a greater choice in dispute resolution.")