Trends in International Mediation: Growth of Judicial and Mandatory Mediation

Trends in International Mediation: Growth of Judicial and Mandatory Mediation

Mediation is a legal success story. Its use has become widespread, particularly in Common Law jurisdictions, but increasingly in countries using Civil Law. While there are of course variations from country to country and in different fields of law, the private mediation model is now very familiar. Countries regulate the process, and indeed mediators, to a greater or lesser extent. There are also real differences in the extent to which laws and the judicial process encourage and facilitate mediation and impose penalties on parties who do not warmly embrace mediation. As to enforcement of mediated settlements, we now have the Singapore Convention on Mediation. Although some major jurisdictions are yet to join this, the UK Government has just concluded that this is the “right time for the UK to become a Party to the Singapore Convention as a clear signal that the UK is committed to maintaining and strengthening mediation and the dispute resolution sector.”

What is less widely appreciated is the extent to which compulsory mediation (with attendant regulation and, frequently, state funding) together with the role of judges as mediators, is now a significant feature in many countries.

I recently took part in IPOS organised training for judges in the use of mediation in The Cayman Islands, following the introduction of a Practice Direction (PD) on Judicial Mediation Guidelines. This PD provides for cases to be referred by the Court to judicial mediation at any stage in proceedings. The motivation for this development appears to be in part to simply encourage the general use of mediation in Cayman, where previously it has been slow to develop outside of Family and Workplace disputes. It remains to be seen whether there will be significant use of judicial mediation in Cayman. Some have suggested that a court ordered mediation may be a tool to encourage reluctant off-shore parties to engage!

Having been asked to take part in this training, it got me wondering about the role of judicial mediation, and judges’ wider involvement in mediation, in other parts of the world. Some research soon brought home to me how widespread such mediation already is, and in some surprising places. Even in the UK, forms of judicial mediation and dispute resolution outside the trial forum are now well established in Family Finance cases, Employment Tribunals, and the Chancery Division. Compulsory mediation for small claims is very likely to be introduced in the near future. These developments are not intended to supplant or rival private mediation and parties will often be encouraged to pursue private mediation as an alternative, quicker, and more flexible process.