Lord Neuberger has said that the compulsory mediation information and assessment meetings (MIAMs) introduced for separating couples should be extended to “smaller civil cases”.
The president of the Supreme Court said the USA, Australia, New Zealand and Scandinavia all had mandatory mediation for some types of civil case.
Rather than arguing that the extension of compulsory mediation “ought to happen”, Lord Neuberger stated that “there plainly must be a lot to be said” for the move.
He said that, according to the Ministry of Justice information service, just under 70% of the MIAM mediations introduced this time last year had successfully resulted in settlement.
In a speech to the 2015 Civil Mediation Conference, Lord Neuberger said another way of encouraging mediation was to get compulsory mediation clauses included in ordinary contracts, just as commercial contracts had compulsory arbitration clauses.
“The government has tried to enforce mediation for boundary disputes which seems to me to be a good thing, but such disputes do not arise out of contracts and therefore cannot be catered for by the parties in advance.
“But there are contract-based claims of a similar nature which are pre-eminently suitable for mediation.
“Thus, there would be much to be said for extending mediation to similar sorts of dispute, such as possession claims based on nuisance and annoyance.
“So might it not be a good idea to include a clause requiring mediation at least in some types of case in every council or Housing Association tenancy agreement – or indeed in standard form private sector tenancy agreements?”
Lord Neuberger said service charges “may be another good area for contractual mediation agreements”, provided experienced mediators could be instructed.
“I think that there must also be a lot to be said in favour of the Department of Health encouraging mediation pretty promptly after any medical procedure goes wrong in a relatively minor way.
“Very often in such a case, an apology, simply saying sorry, may be all the patient or the patient’s family, want. Without a formal mediation, the doctors will be reluctant even to say sorry because of a fear that it will be construed as an admission of negligence.”
To deal with the concern that mediations could be worse than useless if they did not result in a settlement, Lord Neuberger said a procedure could be agreed where mediators could impose a settlement if parties did not agree by a certain time.
“No doubt, the knowledge that the mediator will suddenly convert to an arbitrator at a certain moment, like Cinderella turning into a pumpkin at midnight, helps concentrate the parties’ minds on a settlement before that moment arrives.”
Lord Neuberger added that “as a matter of melancholy fact” the combination of legal fees, court procedures and government cuts made it “difficult if not impossible” for many people to get access to the courts, and mediation “appears in practice to be the only alternative”.