Mediation in England: organic growth and stately progress
| Autor | Neil Andrews |
| Cargo | Professor da Universidade de Cambridge, Inglaterra. |
| Páginas | 571-589 |
Revista Eletrônica de Direito Processual – REDP. Volume IX.
Periódico da Pós-Graduação Stricto Sensu em Direito Processual da UERJ.
Patrono: José Carlos Barbosa Moreira www.redp.com.br ISSN 1982-7636
571
MEDIATION IN ENGLAND: ORGANIC GROWTH AND STATELY
PROGRESS
Neil Andrews
Professor da Universidade de Cambridge, Inglaterra.
I. INTRODUCTION1:
Mediation is potentially a more civilised and more flexible means of resolving a
civil dispute than the `winner takes all’ systems of arbitration and court adjudication.
Furthermore, court proceedings are public, expensive, and adversarial; and arbitration,
although, confidential, is often no less expensive and adversarial than court litigation.
Opportunities to mediate can arise at various stages: mediation can operate as a
complete substitute for civil litigation, or it can take place after court proceedings have
begun, and even after judgment has been given but an appeal is pending.
Mediation has become popular in England. The reasons for this are both organic
and institutional. As for the `organic’ element, news has spread concerning the
advantages of this technique: confidentiality; free choice of the mediator; the
opportunity for flexible agreed solutions; the chance to gain a relatively speedy and
inexpensive conclusion to a dispute. For all these reasons, the mediation process is now
better understood, especially within the commercial sector. By contrast, court litigation
and arbitration remain expensive and often hostile processes.
As for the `institutional’ spur to adopt mediation, Government has begun to
encourage mediation. The main reason for this it that officials recognise that this
process can resolve disputes less expensively than civil litigation. The court system also
directly encourages litigants to pursue mediation in appropriate cases. In Civil
1 For more detailed discussion by the author, see Neil Andrews, The Three Paths of Justice: Court
Proceedings, Arbitration, and Mediation in England (296 pp) (Springer: Dordrecht, Heidelberg, London,
New York, 2011); Neil Andrews, The Modern Civil Process (Tübingen, Germany, 2008); Neil Andrews,
Contracts and English Dispute Resolution (Tokyo, 2010); and his General Report on Arbitration for the
World Congress of the International Associaton of Procedureal Law, Heidelberg 2011, forthcoming (in
English) in Revista de Processo (Brazil).
Revista Eletrônica de Direito Processual – REDP. Volume IX.
Periódico da Pós-Graduação Stricto Sensu em Direito Processual da UERJ.
Patrono: José Carlos Barbosa Moreira www.redp.com.br ISSN 1982-7636
572
Procedure (Moscow) Mediation in England this encouragement involves selective
judicial recommendation of mediation. The English courts also subject disputants to the
general threat of adverse costs awards if parties unreasonably spurn sensible mediation
overtures made by the opponent or by the court.
II. ORGANIC REASONS FOR THE GROWTH OF MEDIATION:
In England resort to mediation has increased, including within the heartland of
commercial disputes2. The Ministry of Justice for England and Wales (2010) reported
on this:3 `the market for mediation in the UK continues to grow. A recent mediation
audit carried out by the Centre for Effective Dispute Resolution (CEDR) showed that
there had been nearly 6,000 civil and commercial mediations carried out in 2009.4
Based on the outcome of the 2007 Mediation Audit, the 2009 figure showed there was a
doubling of mediation activity since 2007.’
Although mediation enjoys support from officials, including the courts, the
better view is that it has not been imposed on the civil and commercial population in a
`top down’ fashion. Instead it has arisen because educated parties recognise the benefits
of endeavouring to reach accord rather than submitting to outside judgment by judges or
arbitrators.
Potential litigants have become aware that mediation can secure various
economic gains, social benefits, and even psychological advantages, when compared to
the other two main `paths of justice’, namely court proceedings and arbitration.5 The
following points will be uppermost in the minds of disputants when they peer down the
barrel of court proceedings: (1) the perception (and nearly always the reality) that court
litigation is unpredictable; (2) the judicial process (including extensive preparation for
the final hearing) involves a heavy-handed fight for justice, which is a source of
expense, delay, and anxiety; (3) court litigation offers little scope for direct participation
by the parties, as distinct from legal representatives; (4) final judgment normally awards
2 K Mackie, D Miles, W Marsh, T Allen, The ADR Practice Guide (3rd edn, Tottel, London, 2007),
especially ch’s 5, 6, 7.
3 Ministry of Justice, `Implementation
4 http://www.cedr.com/index.php?location=/news/archive/20100513_347.htm
5 For development of these points, N Andrews, The Three Paths of Justice: Court Proceedings,
Arbitration, and Mediation in England (Springer Publishing: Dordrecht, Heidelberg, London, New York,
2011).
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