Mediation in civil justice: international evidence review

Executive Summary

• This review took the form of a literature review and discussion with key informants. It is not comprehensive in nature, but explored the available literature and evidence on mediation in the civil justice systems of the selected jurisdictions: Australia (New South Wales and Queensland); Canada (Alberta; British Columbia; Ontario); England and Wales; Ireland; and the USA (Florida; Maryland; Ohio).

Assessment of the Evidence Base

• The evidence base on mediation is variable, making comparison and transferability problematic. Being able to make assured statements about one type of programme working well within the Scottish context based on this evidence is therefore impossible. Instead the evidence base allows for a broad sense of the positives and challenges that mediation presents and should generate useful thinking for those wishing to move ahead with a programme of mediation in Scotland's civil justice system.
• The majority of empirical studies in mediation are focused on short-term settlement and satisfaction rates for users and these act as key indicators of success in mediation. There is also more limited interest in wider and longer-term outcomes, which are recognised as significant benefits of mediation but can be more challenging to research.
• Cost and time savings are also of interest to international jurisdictions. However, the empirical evidence is conflicting on both cost and time savings and there are difficulties in measuring cost savings accurately. There is potential for both cost and time savings for users and the civil justice system by making use of mediation, but the evidence shows this cannot be guaranteed.
• There are also a number of key gaps in the evidence base that are important to fill to better understand and measure outcomes. These can be summarised as: drivers to engagement and settlement; characteristics of parties and the dispute; private, pre-court mediation; quality of outcomes, particularly in the longer term; awareness of and provision of information about mediation; mid-value claims; behaviour of mediators, lawyers, the judiciary and other court staff; robust cost and time savings evidence; negative and unintended consequences.

Operational Summary

• These jurisdictions present a mix of legislative and non-legislative approaches to mediation. Legislation was found to provide a 'focus' for the legal profession, but, from the available evidence, no approach was found to be more or less beneficial for encouraging mediation. Experts were conflicted on what stage in the growth of mediation legislation might be most useful.
• Whether a system is mandatory or voluntary is not always easy to define, and is subject to some discussion. Most systems can fit on a continuum of mandatoriness.
• With some exceptions, most civil cases could go to mediation in all jurisdictions; domestic abuse tended to be an exception. If parties could request to opt-out then there was a mix of formal criteria and judicial discretion used to decide which cases to exempt, with a stronger leaning towards use of judge discretion in these jurisdictions.
• The practice and funding of mediation varies widely across jurisdictions, and is highly context specific. One commonality is a commitment to maintaining mediation as a confidential process, though the extent of this varied.
• Mediation tends to be a self-regulating profession, with Florida an exception in this review. There are court-recognised standards of training for mediators in all jurisdictions, but beyond the courts there are no compulsory standards or single accreditation body (although Ireland is moving towards a nationally recognised set of standards and a single body to regulate the profession).
• The importance of training and mediator experience was reiterated throughout the review, for ensuring fairness of process and reaching settlement.
• Mediation agreements that are written down and signed are either immediately enforceable, as any written contract, or can be made enforceable by lodging the contract with the court, having legal professionals draw up the contract, or having a judge look over the contract and agree/accept it.
• A culture of mediation takes a long time to build, generally over several decades. Experts in these jurisdictions were conflicting in their thoughts on whether legislation and other official routes were more effective in building a culture than important and enthusiastic individuals driving initiatives forward, sometimes from the grassroots up.

Outcomes for Users and the Civil Justice System Summary

• A key message that emerged from the evidence across all jurisdictions was that mediation scores very highly on procedural justice outcomes.
• The evidence reviewed for these jurisdictions suggests that mediation uptake may be encouraged through some level of mandatory process and through use of low fee or free services. However, uptake – or 'levers' to encourage mediation – are a recognised gap in the literature and require further research and exploration.
• Settlement rates varied across these jurisdictions, ranging, in general, from 40-90%, with outliers on either side. It was difficult to pin down exact reasons for this variation, but some broad enablers and barriers are identified in this report. Predicting settlement in mediation is very complex and may come down to differences on a case by case basis.
• The evidence in this review was conflicting about whether voluntary or mandatory approaches to referral to mediation provided better user outcomes. Overall, there is not sufficient evidence to suggest that one approach works better than the other.
• Legal advice/representation (or lack of it) is a topic of debate and concern within the mediation literature of these jurisdictions, as lack of knowledge of the law and no legal advice/representation may lead parties to give away important rights. This may have an impact on settlement, satisfaction, and access to justice outcomes, which suggests serious consideration of legal advice/representation and of wider power dynamics in mediation is needed.
• 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.