Expanding the Enquiry: The Ministry of Justice’s Call for Evidence on Dispute Resolution - Dr Anna Howard

As highlighted in YMG’s previous newsletter, the UK Ministry of Justice has recently issued a series of questions in its Call for Evidence on Dispute Resolution to assist it to achieve its ambition “to mainstream non-adversarial dispute resolution mechanisms.” This short post draws on recent research to propose an additional and important question which has tended to be neglected in enquiries on mediation to date.

The first theme of questions in the call for evidence is on the “Drivers of engagement and settlement” with the introductory text explaining that “an understanding of the drivers of engagement and settlement will enable the development of policies and procedures that ensure access to justice in a way that best meets people’s needs.”  An important further question to ask is: what are the drivers of disengagement with dispute resolution processes or, in other words, why do parties not use these processes?  As I argue in my recent book, EU Cross-border Commercial Mediation, Listening to Disputants – Changing the Frame; Framing the Changes (Wolters Kluwer, 2021), research to date tends to focus on the reasons why parties use mediation rather than on why they do not use mediation.  For those seeking to promote the use of mediation, such as the Ministry of Justice, an understanding of the reasons why parties do not use mediation is an important and neglected area of enquiry. A promotion of mediation that is to “best meet people’s needs” must also acknowledge and engage with the reasons why parties choose to not use mediation.

Insights from interviews with senior in-house counsel which I conducted for the research for my book reveal that understanding mediation simply as the avoidance of litigation - as has tended to be the promotional message for mediation - means that important reasons why parties do not use mediation have been missed.  Mediation tends to be presented as the easy option, saving time and cost compared to court.  However, viewing mediation through the eyes of in-house counsel as assisted negotiation revealed novel insights into why mediation is not used, and suggests that for disputants mediation is far from the easy option. For example, in-house counsel explained that engaging a mediator to assist them to resolve their dispute draws attention to the fact that they were unable to resolve the dispute themselves in their own, unassisted negotiations. To borrow the compelling words of one of the interviewees, proceeding to mediation is regarded as an “admission of failure”.  Relatedly, a further reason which the interviewees identified for not using mediation was a scepticism of what mediation could add to their own, unassisted negotiation efforts. They also spoke of: their concern of being criticised by others not present in the mediation for failing to get a good deal; of a reluctance to continue to take responsibility for resolving the dispute; and of the appeal of being relieved of this responsibility when the dispute is determined by someone else. 

What all of these reasons for not using mediation have in common is that they move us away from focusing on what mediation enables disputants to avoid (i.e. court) to an appreciation of what is being asked of disputants when they use mediation. How might the promotion of mediation change when viewed through this very different frame? And what further insights might be gained if we continue to ask parties why they do not use mediation?   

Dr Anna Howard

Post-doctoral Researcher, Queen Mary University of London

9 October 2021