Mediation in civil justice: international evidence review

Introduction

This report explores mediation in the civil justice systems of five international jurisdictions, namely Australia (New South Wales and Queensland); Canada (Alberta, British Columbia, and Ontario); England and Wales; and the USA (Florida, Maryland, and Ohio), with a more limited review of evidence on the recent reforms in the Republic of Ireland.

Focus on these specific jurisdictions was requested by policy colleagues, but some decision had to be made around the specific states/territories/provinces to be explored for the federal nations. This was done through a combination of an initial reading of the literature and through discussion with local (Scottish) mediation experts – both practitioners and academics.

The complexity of alternative dispute resolution (ADR) more widely, and mediation specifically, means that these jurisdictions will not provide a comprehensive understanding of the operation and effectiveness of mediation internationally, but will provide a useful flavour of different approaches, outcomes, and debates around mediation in each area. Much of the discussion focuses on court-connected programmes, due to the greater availability of evidence, with government and community mediation mentioned wherever possible. There is also a great deal of private mediation occurring in each jurisdiction under study here, but the confidential and private nature of mediation means these are much harder to investigate; there is also a lack of regulation of private mediation and therefore less to clearly report. Private mediation appears under-researched and generally 'off the radar'.

The exact nature of mediation is a debated topic, and there remain a number of ongoing discussions about what exactly mediation should 'look' like in practice and therefore how it should be defined. In this review the nuance of this debate has not been strongly delineated when searching for literature; instead we have accepted all literature and evidence available in the time from each jurisdiction. Our review does not therefore subscribe to one particular definition of mediation. However, the Advisory, Conciliation, and Arbitration Service (ACAS) – who also provide workplace mediation services across the UK – suggest this broad definition:

Mediation… Is where an impartial third party, the mediator, helps two or more people in dispute to attempt to reach an agreement. Any agreement comes from those in dispute, not from the mediator. The mediator is not there to judge, to say one person is right and the other wrong, or to tell those involved in the mediation what they should do. The mediator is in charge of the process of seeking to resolve the problem but not the outcome.^[1]

While Scottish Mediation defines the process thus:

Mediation is a flexible process that can be used to settle disputes in a whole range of situations. Mediation involves an independent third party, the mediator, who helps people to agree a solution when there is a disagreement. The mediator helps parties work out what their issues and options are, then use those options to work out an agreement.^[2]

These definitions help to situate mediation within the wider ADR landscape and provide a sense of what this process is intended to look like for those taking part. This report works from the basis that mediation is as broadly defined above.

Structure of the Report

Following this introduction, the report will outline the methodology used in this research project and will discuss the nature and quality of the evidence. Beyond this, the main features of the operation of mediation in the selected jurisdictions will be summarised. This will be followed by a discussion of user and system outcomes from across all areas, with a final conclusion and key points and questions for further consideration.