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With the current position in England and Wales that there is no reason in principle why mediation should not be made a compulsory part of the litigation process, this was an interesting panel discussion under a comparative lens from the perspective of other jurisdictions around the world, including Singapore, France and USA.

Compulsory mediation

There were some helpful highlights on the recent developments in respect of mediation in England and Wales, including the consultation from the Ministry of Justice and HM Courts and Tribunals Service (HMCTS) to introduce free and compulsory mediation for individuals and businesses bringing claims of up to £10,000. The panel referred to the Master of the Rolls (Sir Geoffrey Vos), whose vision is that focus should be on resolution rather than on the dispute. This reformed process would require all parties to attend an hour-long telephone session with a HMCTS professional mediator with the goal of achieving a legally binding agreement. The international members of the panel explained that other countries, such as France, will shortly compel parties to go to mediation as a first stage prior to the litigation process for some claims of up to €5,000. The panel agreed that avoiding spending significant costs in litigation is an important justification for the ones who favour compulsory mediation as an appropriate tool to resolve disputes at an early stage.

When should parties use mediation?

There was an interesting discussion as to when the most suitable time to refer a dispute to mediation should be. The earlier, the better was the consensus. There were some additional mentions with regards to different approaches adopted in other countries such as in Canada and in Germany, where the court would assess the appetite for a case to be referred to mediation at a preliminary stage and could order parties to use mediation before the matter proceeds further with the litigation process.

The conduct of mediation

All the members of the panel emphasised the need for parties to make a joint decision regarding the choice of the mediator / mediation centre. Some anecdotes from the members were provided as to the ‘tactics’ that are sometimes being used on the day of the mediation – these included, among others, the use of an expert or legal opinions. In some countries such as in England and Wales, the exchange of mediation statements between parties is important. In other countries, some members of the panel explained that such exchange is not necessarily being used.

Costs implications of refusing to mediate

A helpful insight was provided in respect of the courts’ discretion to penalise a party for refusing to mediate. In England and Wales, the courts can impose sanctions when costs questions arise. The panel also referred to TMO Renewables Ltd (in liquidation) v Yeo [2022] EWCA Civ 1409 in which Lady Justice Asplin encouraged parties to consider mediation especially in the light of the fact that reputations were at stake. The international members explained that these questions are approached differently in their jurisdictions. In USA, for example, costs implications will only arise if a party refused to participate in a mediation, in breach of a court order.

Conclusion

The panel concluded that mediation remains a process that is driven by the parties. The panel also appreciated that some may only use it to ‘test’ their case, however it is still a procedure that saves costs, time and resources involved in courts. The panel encouraged parties to adopt a positive attitude and evaluate the potential for settlement where possible. Finally, mentions were made to the Singapore Convention on Mediation as a great tool to enhance the success of the mediation process.

Panel members

Catherine Penny, Stevens & Bolton

Hannah Fry, 39 Essex Chambers

Yuankai Lin, Reynolds Porter Chamberlain

Benjamin Wilson, Holland & Knight

Gabriel Hannotin, Gide Loyrette Nouel