In October this year the Civil Justice Council’s Working Group published an interim report on ‘Alternative Dispute Resolution’, seen as bringing compulsory mediation in the civil justice system a step closer.

The report acknowledged what mediators have long known, namely that there remains a fundamental problem in making ADR culturally normal.

Mediation has been urged down through the centuries, but why has it fallen upon deaf ears? Why do disputants continue to use a process that is costly, risky, lengthy, public, complex, formal – and successful in only 50% of cases, when there is an alternative process that is quick, cheap, confidential, risk-free, easy to use – and effective approximately 85% of the time?

The answer is biological. We are not programmed to compromise with our enemies, but rather to fight and win. We have an innate survival instinct which, in dispute, transforms itself to an aggressive emotional need to crush the opposition. It prevents us from acting rationally or commercially.

Mediation is counter-intuitive. It is unnatural to sit down with the perpetrator of an injustice against us, and seek an amicable compromise: it defies all our Darwinian predispositions.

So, left to our own devices, we will never choose to mediate, but will invariably want our day in court. The courts are seen as the only route to justice, and judges the only means of securing vindication.

The time has come for us to make some stark choices. Do we want to spend another 30 years scratching our heads, wondering why those in dispute continue to choose the more painful option? A 2007 National Audit Office report concluded that despite obvious advantages, few litigants were trying mediation, and more needed to be done to promote the process. 10 years on, little has changed.

How many more times must we hear stories of litigants squandering obscene sums of money on legal fees, and devoting vast amounts of time and energy in litigating seemingly petty squabbles? How often will Judges declare in exasperation “this case should have been mediated,” before we say: ‘enough is enough’? To continue the same measures as have been tried and failed over the past 25 years, and expect a different outcome, is surely insanity?

The Government must now grasp the nettle. The Consultation period provides a great opportunity for a constructive transformation of the Dispute Resolution landscape. I was asked by the CMC Board to draft a proposal in response to the consultation. My model procedure for ‘automatic referral’– as opposed to the toxic concept of ‘compulsion’, has been circulated to the CMC membership, with a view to it being submitted to the MoJ as part of the consultation.

The Government would do well to heed the note at paragraph 9.18(a) of the CJC report:

“It has to be worthwhile to impose a simple, universal requirement on the parties to do something which will be of benefit in all but a small minority of cases.”

This article has been adapted from the piece originally published in the Times Online and The Brief.

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