Mediation in civil justice: international evidence review

Conclusions

In reviewing this evidence it becomes clear that context is highly significant to mediation, its operation, and effectiveness. The evidence is often conflicting or unclear and there are some issues that cannot be decided definitively. Nevertheless there are some important conclusions that can be made, as well as a point to consider going forward on what success in mediation looks like.

What the evidence tells us

The evidence shows that mediation can have a range of positive outcomes for both users and the civil justice system. There is the potential to save court costs and time, as well as user costs and time. Though this may be hard to accurately quantify – and to guarantee in every case – there is the potential, and the jurisdictions under review here are all working under the assumption that cost and time savings can be made, despite the limited empirical evidence base. Beyond the efficiency agenda there are further significant positive outcomes noted throughout the literature: self-determination, empowerment, building dispute resolution skills that may be taken back to the community, enduring compliance with settlement, strong procedural justice outcomes, and the potential to maintain relationships.

Nevertheless, these positives are not straightforward or without caveat, and these caveats are important to bear in mind. The strong procedural justice outcomes are twinned with rather less positive substantive justice outcomes – it is not fully clear from the evidence why this is the case, though there is some evidence of a sense of pressure to settle. Settlement may not always be the best measure of success in mediation therefore, and other outcomes should be considered equally significant. Access to justice should be of the highest significance to the justice system and careful consideration given to what kind of justice mediation offers and when it is appropriate. Mediation is not a panacea, and may do better for some cases than others, bearing in mind power dynamics, the privacy and confidentiality requirements, cost, and speed. On top of this there are important concerns in the literature about the role of legal representation, which can add to costs, but may be important to justice as parties have the advice and guidance needed to make good decisions and create useful, fair settlements. 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. Finally, the quality of mediators is significant to outcomes of all kinds, so there should be a sustainable system that allows for good and ongoing training, and the availability of services that are resourced and adequate to need.

Mediation needs to be flexible in meeting the demands of jurisdictional context, with a structure in place that allows space for this flexible response, potentially on a case-by-case basis.

What is success?

Any programme of mediation needs to define its measures of success and monitor those carefully and robustly. In the case of mediation and other ADR processes, it can be difficult to define success. As NADRAC have said:

The traditional approach to evaluating the 'success' of dispute resolution is to define intended outcomes and the criteria or indicators by which achievement of those outcomes can be judged… [However] there are diverse objectives for ADR and consequently many different ways to define success. For example, fairness may be more important than settlement of the dispute. Durability and long term impact may be more important than the immediate outcome. ADR also may have broader goals such as capacity building, skills development and reductions in social friction.

Any evaluation of outcomes, however, needs to take into account unintended and unplanned consequences, whether positive or negative. It is also important to note that the 'success' of dispute resolution may refer as much to the process (for example, satisfaction with how a session was conducted) as to the outcome (for example, whether an agreement was reached)… [We have found] indicators for success are determined largely by the context.^[132]

NADRAC suggest that unintended consequences may come in the shape of more parties seeking mediation because they have greater knowledge of it, which may actually increase court workload (depending on how the scheme is administered) – and indeed, this did occur in Alberta, leading to the suspension of the mandatory scheme. However, 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.^[133] There may also be positive outcomes that are indirect, such as use of mediation meaning parties take the skills learned back with them to their communities and are more able to deal with disputes themselves in future.^[134] 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.^[135]

Therefore it is 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 or whether one single measure would be considered more significant: combining qualitative and quantitative data would seem the strongest way forward. Positive qualitative outcomes may produce poor quantitative outcomes, and vice versa, so combining them to get a fuller picture is important.^[136]

Similarly, when considering success, McEwen has noted the importance of case management, especially in large corporate cases: this can help to keep costs to a minimum, maintain relationships, and reduce the time of the process.^[137] He argues that case management is as significant to the result of the dispute as mediation itself, though having the 'perspective' that mediation provides can promote general, effective management of disputes.^[138]

Whether and what to measure, as well as why these particular factors are chosen, are significant questions to consider when thinking of a 'successful' future programme; evaluation should be considered from the start.