Mediation in civil justice: international evidence review

Methodology

The Review was initially intended to be carried out through a standard review of literature. However, it soon became clear that a standard literature review alone was unlikely to be able to answer all of the research questions. Accordingly, the research team sought to make contacts in each of the jurisdictions under study to seek assistance in locating any available information/evidence to fill gaps, including any recommendations for further reading. It should be noted that the key purpose of the interviews is around filling gaps in evidence/information, and as such the sample is not intended to be representative.

Research Questions

Subject to available evidence, the review sought to answer the following research questions:

• To what extent is mediation a part of the civil justice system in each of the jurisdictions (including case types; and uptake levels or volumes) and what are the key features of its operation across the civil justice system?
• To what extent is mediation embedded within the civil justice system, and what were the key drivers where applicable?
• Is mediation regulated and if so how?
• Is mediation in the civil justice system mandatory (and to what degree) or voluntary?
• What steps have the jurisdictions taken to encourage the use of mediation?
• What are the costs of mediation and who pays (including any cost benefit analysis)?
• What does available evidence tell us about the outcomes for users of mediation (including settlement rates; cost; time; access to justice; satisfaction levels)?
• What does available evidence tell us about potential outcomes for the wider justice system arising from the use of mediation?

Literature Review

The literature review has taken a three-pronged approach:

1. A literature search was conducted by the Scottish Government library at the outset of the study (see below for list of library databases). In discussion with the library a schedule for the literature review was created with relevant search terms: mediation; civil justice; effectiveness; cost; cost benefit; UK; international; Ireland; Canada; USA; access to justice; alternative dispute resolution; compulsory mediation; voluntary mediation. These search terms were refined after a first set of search results was produced to include 'legal aid'. The results were worked through for relevance and quality, and an updated and refined search with additional search terms was later added as the project developed: mediation; civil justice; effectiveness; cost; cost benefit; UK; international; Ireland; access to justice; alternative dispute resolution; compulsory/mandatory mediation; voluntary mediation; England and Wales; USA; Maryland; Florida; Ohio; Canada; Alberta; British Columbia; Ontario; Australia; New South Wales; Queensland; court-annexed; community justice; judiciary; legal aid; lawyer; legal representation; global trends mediation; mediation in civil justice; evidence base mediation; review mediation; outcomes mediation; settlement; settlement rates; satisfaction rates; uptake (and any combination of these).

Justice Analytical Services also conducted a literature review to create a narrative literature review; this was intended to capture any literature that might have been missed in the formal library review. A narrative approach is typically selective, accepting that not all results can be studied. It is therefore useful for a rapid or time-limited project such as this one. It allows for wide gathering of data and information to create 'a narrative' about a topic or, in other words, to gather as much information to create a broad understanding of a new topic area or a wide-ranging topic area, such as this one. Through reviewing as many results as possible, key points of interest that come up time and again are gathered.

2. Next a review of the grey literature was carried out, also using a narrative approach. Grey literature is research produced outside of commonly used academic and commercial channels and is found on the internet. This meant searching using Google and Google Scholar for appropriate literature around mediation, using the search terms: mediation; civil justice; England and Wales; USA; Maryland; Florida; Ohio; Canada; Alberta; British Columbia; Ontario; Australia; New South Wales; Queensland; Ireland; Mediation Act 2017 Ireland; voluntary; mandatory; court-annexed; community justice; judiciary; legal aid; lawyer; legal representation; global trends mediation; mediation in civil justice; evidence base mediation; review mediation; outcomes mediation; settlement; settlement rates; satisfaction rates; uptake; cost; cost effectiveness (and any combination of these).

3. Third, literature suggested or shared by key informants was followed up wherever possible.

Key Informant Discussions

As well as providing useful evidence to read and follow up on, key informants also provided information on the less tangible aspects of the review, namely the extent to which a 'culture of mediation' was embedded within each place. When a history of drivers towards mediation was not available or was incomplete through standard literature and evidence, informants were also helpful in piecing together the growth and development of mediation in that area. Again, these informants were not intended to provide a representative sample of views in the jurisdictions, but to help fill in important gaps in available evidence. They came from a range of areas: academia, courts (judges and court officials), mediation organisations, and government. These individuals are referenced throughout the report. In such a wide field as mediation these key informants cannot be expected to agree with everything stated in this report, but have given their permission to be named in relation to the specific points connected with them.

Library Databases

In the first instance, the search for studies was carried out by the Scottish Government Library Service using KandE. KandE is an online search engine which covers a range of high quality databases, which are detailed in the below table.

Table 1: List of Databases Searched