Mediation – Who is holding back?

Alternative dispute resolution, and in particular mediation, is constantly gaining new supporters.

But who is holding back from further acceleration in the use of out-of-court dispute resolution?

Are there clients who have not understood the advantages or their interests inherent in effective dispute resolution before court proceedings?

Is it the advisers who put their financial interests first and do not provide adequate advice on dispute resolution options other than court proceedings? Or is it the case that many advisers are not aware and/or do not have sufficient knowledge and skills to advise on dispute resolution options other than litigation?

Is it the authorities who have too little awareness of what can be created outside the traditional dispute resolution in court, and who may not see what savings society can have with effective dispute resolution before court proceedings?

These questions could be related to awareness, knowledge, ethics, economics, or all the above.

Let me limit myself to some reflections on the economy thistime.

I have not found Norwegian reports that have made financial calculations of savings we can have in Norway if we introduce mandatory mediation, and please let me know if you have.

The British have recently done so.

British justice authorities estimate that their court system will save between £4.6M and £7.1M (Norwegian kroner 52.9 million and 81.6 million) per year if they introduce mandatory mediation in small civil cases up to £10,000 (about NOK 100,000). The British believe their proposals will lead to nearly 20,000 additional cases finding their solutions out of court, freeing up as many as 7,000 court days for judges to use them on more complex cases.

The users, many of whom are smaller businesses, are estimated to save between £37M and £58M (NOK 425 million and NOK 667 million) because disputes are resolved more quickly and efficiently with the use of mediation.

In this way, the small businesses, and other users of the courts, can use their funds for what they are doing, running their businesses, and society can use the funds for those cases that need to be dealt with in court. Here’s What Justice Minister Lord Bellamy said: “Millions of businesses and individuals go through the civil courts every year and many of them simply do not need to. … This could also help free up vital capacity in the civil courts to deal with more complex cases quicker”.

Could the British proposal for mandatory mediation in small cases help reduce arrears in Norwegian courts, so judges can spend their time on more complex cases, and that courts and clients can save funds?

Or does a proposal for mandatory mediation fundamentally violate the principle of voluntariness in mediation, and therefore should we search for mechanisms other than a change in the law to reduce arrears in courts?