There is no evidence that making mediation compulsory rather than voluntary produces better results, a review by the Scottish government has found.
The review of five international jurisdictions, including England and Wales, also found that the role of lawyers in mediation could be essential in ensuring good decisions and “useful, fair settlements”.
Researchers said the debate over whether mediation should be a voluntary or mandatory process was “divided within and between jurisdictions and clearly has ideological overtones”, depending on how mediation is defined and what its “ultimate goal” was seen to be.
“In terms of outcomes for users, there was no conclusive evidence that favoured mandatory systems more than voluntary or vice versa.
“The evidence is conflicting, with some studies favouring one system, some another, and some stating that there is limited or no difference in terms of outcomes between voluntary or mandatory systems.”
A study of voluntary and mandatory schemes of mediation in small claims and common pleas courts in the USA found that mandatory mediation had lower rates of settlement than voluntary mediation.
However another US study, of court-ordered mediation in employment cases, showed that compulsory mediation improved settlement rates.
The Scottish review found that all jurisdictions operated “under the assumption that time and cost savings can be made” by using mediation, despite “the limited empirical base”.
The involvement of lawyers, which could add to costs, “may be important to justice as parties have the advice and guidance needed to make good decisions and create useful, fair settlements”.
The review went on: “Though lawyers may not always be on board with mediation, their role in ensuring quality justice is important, therefore finding a balance between representation and costs, and ensuring education and information about mediation to all stakeholders, is important.
“Most felt that parties were best served with the full support of legal advice in mediation, wherever this came from (i.e. mediators require legal knowledge to support self-represented parties or lawyers should attend).”
The review took the form of a literature review and discussions with “key informants”. It covered civil and commercial mediation, excluding family law.
The jurisdictions studied were Australia (New South Wales and Queensland), Canada (Alberta, British Columbia and Ontario), England and Wales, Ireland, and the USA (Florida, Maryland and Ohio).
Settlement rates varied across these jurisdictions, ranging, in general, from 40-90%, with “outliers” on either side.
However, the review concluded that “success” in mediation could be difficult to define.
“A mandatory requirement to try ADR may mean more people seek private mediation or other ADR and settle before reaching an official programme, which may mean that programme statistics of use are low or settlement rates on the official programme are low due to more complex cases reaching that stage.”
Mediation could also encourage parties to “take the skills learned back with them to their communities” and improve their ability to deal with disputes themselves in future.
“The very knowledge of what is being measured as ‘success’ may encourage people to work towards it to the detriment of other things: for example, if settlement is key this may risk increased pressure to settle on parties.”
Researchers concluded that it was “necessary to think through what ‘success’ would look like for any planned system of mediation and whether there should be several measures working in conjunction” rather than one single measure.
The review added that mediation “should not be seen as a panacea, but used where appropriate. It should be a part of giving users access to a range of dispute resolution processes, including trial”.
In a major review published last December, the Civil Justice Council called for a ‘notice to mediate’ system used in Canada to be considered as the first step towards a more “automatic” system of ADR, but found “virtually no support for blanket compulsion”.