Mandatory Mediation: Insights From The LCAM-HSF Survey

• Published date: 01 February 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Herbert Smith Freehills
• Author: Mr Craig Tevendale, Chris Parker and Rutger Metsch

Herbert Smith Freehills recently partnered with the London Chamber of Arbitration and Mediation (LCAM) to survey a cross-section of the dispute resolution community on attitudes to compulsory mediation in arbitration and mediation.

The results indicate that there seems to be support for some degree of mandatory mediation in both litigation and arbitration, but that effective system design might prove complex and will need to be tailored to reflect the diversity of proceedings across the broad spectrum of civil disputes.

Please use this link to access the recording of a live webinar in which Craig Tevendale, Chris Parker KC, Gill Mansfield and Jonathan Wood discuss the survey's outcomes.

Who did we ask?

The Survey attracted just under a hundred responses from a range of dispute resolution practitioners. Over half of the respondents described themselves as external counsel and over one third considered their primary role to be either mediator or arbitrator. The remainder comprised other lawyers and stakeholders (such as in-house counsel, knowledge lawyers, and academics).

While questionnaires of this nature naturally do not provide definite empirical answers, the survey's results provide some insight into attitudes toward compulsory mediation within a cross-section of the dispute resolution community.

However, it is important to bear in mind that the survey reflects views from across a range of practice areas. As we have previously discussed, the question of whether and when compulsory mediation may be appropriate depends on a range of factors, and these differ markedly between different types of proceedings across the broad spectrum of civil disputes. (For our analysis of how they apply in complex commercial court proceedings, see this article).

Could compulsory mediation be effective?

Many dispute resolution practitioners will be familiar with Dyson LJ's (as he then was) comment in the seminal Court of Appeal decision in Halsey v Milton Keynes [2004] 1 WLR 3002 that "[i]f the court were to compel parties to enter into a mediation to which they objected, that would achieve nothing except to add to the costs to be borne by the parties, possibly postpone the time when the court determines the dispute and damage the perceived effectiveness of the ADR process." For years, this quote has been a go-to for law students and commentators grappling with the issue of compulsory mediation. However, do practitioners (still) agree with this sentiment?

It appears the survey respondents do not. The survey's 'warm-up question' was whether mandatory mediation could, in...