Mediation Advocacy: Bringing Balance to the Scales of Justice in a Revolutionized Civil Law System

The law is all encompassing. Its protective mantle extends to every human being regardless of race, color, religion, gender, and social status. Its voice should therefore be heard by everyone and its guiding light should be readily accessible especially to those who need it the most. Mindful of this principle, one is easily inspired by the efforts students, barristers, and solicitors are putting into the Street Law Project. Spreading the word of justice to the lay people at the grass roots level is not only a challenging endeavor but is also a greatly rewarding experience.

In line with the UK’s Street Law program, some schools include mediation assistance as one of their activities through the Mediation Friends Project. This is a pioneering initiative in which students are trained in mediation so they can provide free support to otherwise unrepresented parties in mediation. The project’s goals are to provide assistance to the unrepresented parties and to promote the use of mediation as a form of alternative dispute resolution.

This undertaking is probably one of the most important aspects of legal advocacy that must make its solid mark on public awareness especially with the birth of the Woolf reforms which revolutionized the civil law system in England and Wales. These reforms paved the way for the promotion of the Alternative Dispute Resolution which includes Mediation as one of its primary measures.

Mediation, as an alternative dispute resolution scheme, is the legal system at its most practical application. It brings the law straight into the heart of the community and by doing so, introduces a new image often unseen by the public. By providing venue for the people to settle their disputes amicably, mediation has transformed the spectator into an actual participant in the administration of justice and in order to satisfy its ends, assistance from the learned therefore becomes necessary.

Sadly, the law with its vast complexity is viewed by many as a punitive fault-finding mechanism which favours the rich and the powerful more than the ignorant and the underprivileged. More often, people tend to avoid litigation due to the financial burden and too much time required by the process even if it means sacrificing their very own rights and interests. It is for this very reason that the Alternative Dispute Resolution (ADR) is encouraged by the courts as a matter of course pursuant to the legislative mandate enshrined in the Civil Procedure Rules. Though it does not involve extensive knowledge of the law, disputing parties are still entitled to sufficient advice and guidance for the protection of their rights. Mediation and the other forms of ADR never guarantee fair settlement if a party is unaware of his options and the lawful extent of his claim. An abusive party could easily tilt the process in his favour absent any legal and informational support for the other specially with the prodding of an enterprising lawyer.

Unrepresented parties are likened to a litigant in person who is seen by most judges as a problem. According to the Judicial Studies Board Journal Issue 15 published in 2002, litigants in person often jeopardize their own rights due to lack of knowledge of procedures and legal remedies available in their case. They may make point, which to lay people appear “right”, but which have no foundation in law.

Through extending assistance to the unrepresented, the Mediation Friends volunteers have leveled the playing fields thus ensuring fair settlements among parties in dispute. Consequently, they have also contributed to the much-needed de-congestion of court dockets thereby giving more opportunity for the courts to attend to more pressing matters not otherwise subject to settlement or such other cases no longer falling within the ADR. As future officers of the court, law students are no stranger to the idea that the management of cases do not lie exclusively in the hands of the judges. Lawyers are indispensable players in the whole legal drama. It becomes an integral part of their role to assist the court in advancing justice in a less burdensome and less costly manner. As such, the Civil Procedure Rules urges the court, and of course its officers, to encourage the use of alternative settlement of disputes.

Mediation covers almost all areas of day to day human activity including personal, commercial, and business relations among members of society. As such, failure to satisfy its goal, does not only entail economic damage but it also brings about societal dysfunction. Businesses against their clients, employers against their employees, members of the family not seeing eye to eye. All due to disputes which can be settled in a manner less adversarial and more akin to the philosophy of man as a social being. Not only do the volunteers contribute to the front-line delivery of justice but they also share in the struggle to save the community from the economic, financial, and sociological strains of avoidable litigation.

The Paths to Justice Scotland research, reported the findings of a large-scale survey exploring the public’s preferences and motivations in taking action when experiencing a large range of everyday problems. This research indicated ‘a widespread feeling of ignorance about legal rights that exists across most social groups’. For example, while only 3 per cent of respondents who had experienced a problem did nothing to resolve it, the survey found that over half of those taking no action did so because they thought nothing could be done. In addition, of the 32 per cent who ‘self-helped’, that is who took some action to resolve their problem but without outside help, one in four considered seeking advice, but chose not to. The most commonly cited reasons for not seeking help were that the respondent did not think anything could be done or that advisers would not be able to help them.

The Mediation Friends project thereby offers a unique opportunity to would be litigants. Aside from providing information and options, it opens the door of hope in the complex arena of civil procedure. However, there are still a lot of things to be done considering that the project is still at a very early stage. Training in mediation and actual practice through free public assistance is indeed a big step forward.

According to an article written by Michael Frisby and Zoë Morrison published in the 2008 issue of the Commercial Litigation Journal, ‘The introduction of pre-action protocols and a greater willingness by the courts to penalise parties that resort to court action other than as a matter of last resort has greatly changed the way disputes are handled. With the emphasis on front loading of costs and early preparation leading to early settlement negotiations coupled with Par 36 offers, the reforms have been very successful in promoting early settlement of disputes, often without proceedings being issued.’

In the context of commercial litigation, the ADR has been successful so far. However, due to recession and the economic downturn, it is observed that litigation has become a more attractive prospect for some. The article continues to say that ‘during previous downturns in market conditions, litigation has been a source of increased activity in law firms as businesses fight to hold onto what they have or utilize it as a cash flow tool to avoid paying money out.’ From these observations, it is clear that mediation advocacy is put to the test during periods of economic anxiety. It is during these hard times that the volunteers’ dedication to the cause has become indispensable.

In the workplace, disputes are a common occurrence and according to Bettina Rigg, partner, Bond Pearce LLP and accredited mediator, ADR Group, and Eve Pienaar, senior workplace mediator, ADR Group, in their article “Workplace mediation: an overlooked method of dispute resolution”, ‘the use of mediation to resolve workplace disputes has not yet come of age’.’ Undoubtedly resistance by employers is a key reason. There is still a feeling that mediation is a ‘last resort’ before litigation. This is based on the experience of commercial mediation, where mediation is increasingly embedded in the post-proceedings stage of litigation. Some employers also feel that mediation is in some way a soft option, allowing an employee to string out grievances further.’ ‘There is also resistance by employees. Most neither understand that mediation is outside the HR process nor that it is available to them. For many employees the prospect of going into a workplace mediation, usually unrepresented and having to bare and confront highly emotional and personal matters, is frightening and stressful.’ On this account, the benefits of mediation have been undermined mainly by lack of information and apparent misconception as to its nature. Again, the importance of the mediation volunteers is put into play.

In England and Wales, the ADR has not yet gained enough popularity and people need to be informed of its nature and benefits. Civil law experts such as Hazel Genn claim that ‘despite the encouragement of pre-action protocols, civil procedure rules, and the Funding Code, the use of ADR has not increased in the way that was anticipated. The voluntary pilot mediation scheme at the Central London County Court (CLCC) only had a take-up rate of 4% before 1999. Between 1999 and 2003, when the effect of the Woolf reforms was beginning to be felt, there was an increase in the take-up of this scheme, but a decrease in settlement rates from 62% to 40%.’ She further hypothesises that ‘the Woolf reforms have led parties to mediate in order to avoid cost penalties, and in order to appear to cooperate with judicial direction, but they may be only “half-hearted” in their attempt to negotiate a settlement.’

Though some experts say that out of court dispute resolution in the UK is not yet as efficient and as well-known compared to other countries such as the US, Canada, and even developing countries as far as the Philippines, the Mediation Friends Project has done the first step in ushering a new era where petty differences are extinguished before it grows to a full blown conflict that takes much of our resources and putting strain to the already problem-ridden society.