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The Psychological Case For an Element of Compulsion to Mediate
A comment upon the CJC Interim Report on ADR and Civil Justice
On the 17th October 2017, the Working Group of the Civil Justice Council (CJC) published a 98-page interim report on ADR and its position within the civil justice system. It was described in the Law Society Gazette as bringing compulsory mediation a step closer towards the civil justice system, whilst stopping short of making ADR a pre-condition to issuing proceedings .
The Fundamental Problem
The report acknowledges what many mediators have long known to be true – and what indeed a National Audit Office report concluded in 2007, namely that despite a plethora of efforts and initiatives, by the courts, judges, mediators and the government over the past 30 years, there remains a fundamental problem of the failure so far to make ADR familiar to the public and culturally normal.
The Working Group do not claim to have any magic solutions. Nor do they make any real attempt at an explanation for this failure – indeed the first of the Working Group’s Recommendations (R1: Para 9.8) states:
We invite discussion as to why the attempts to make ADR familiar and culturally normal have so far been largely unsuccessful and as to how more might be achieved in future.
In this article I propose to put forward at least one possible explanation for the failure to make ADR culturally normal. This represents my own personal views and not those of the Civil Mediation Council.
Is it lack of Education?
It seems clear from several passages in the report, that the Working Group believe the principal reason to lie in the lack of education of the public:
4.2 Mediation is not yet culturally normal and without professional advice the public are generally not familiar with it or comfortable about using it.
9.5 It is plain that for very many people the idea of ADR remains strange and difficult to grasp…..But plainly a situation in which most of the population were comfortable with ADR and aware of its usefulness would be worth far more than any amount of compulsion or encouragement.
8.6.2. [Mediation] pulls unwilling parties into an unfamiliar process such that not only does the mediation have a reduced chance of succeeding but the whole process of mediation could be brought into disrepute.
Can it really be the case that the public are more familiar with, more comfortable in, and find the litigation process easier to grasp? To most litigants, the court process is utterly alien. It is uneasily formal, with rows of lawyers seated in front of an elevated judge, mostly in 17th century wigs and gowns, whilst they the litigants are relegated to the back benches of the court. The court language is utterly foreign, with lawyers glibly using words and phrases such as: “Part 36 offers”;. “Fast Track and Multi-track”; “Without Prejudice (save as to costs)”; “Part 8” and “Part 20 claims”; “interlocutory proceedings”; “Tomlin Order”; “tortfeasor”; “taxation (of costs)”; and acronyms such as “ATE”; “CPR”; “CFA”; “ECJ”; “ET”; “EAT”; “HRA”; “IVA”; “LSC”; “SCCO”; “SIF”.
In terms of ‘selling’ mediation to the public, surely there can be no product on the market that has a larger army of committed, dedicated, evangelical sales personnel, all eagerly and enthusiastically educating the public in the many aspects and benefits of the product? Mediation is now mentioned on a daily basis in current news reports, often enough to send any curious litigant searching on Google, where in a nano second they can find links to all there is to know about the process. Nor is mediation a new phenomenon: it has been around for a great deal longer than 30 years. Abraham Lincoln, in a lecture to his law students in the 1850’s stated: “Discourage litigation. Persuade your neighbors to compromise whenever they can…There will still be business enough.” Even before that, and throughout history, Christian clergy, Rabbinical teachers, Muslim clerics, Buddhist monks, and Confucian philosophers have all sought to teach the essence of collaborative dialogue mediation.
Education is not the answer
Why has all this education fallen on deaf ears? It is because mediation is simply not relevant to members of the public unless and until they are embroiled in a dispute. The situation is not dissimilar to that of Osteopaths and Chiropractors. A majority of the public do not understand the difference between the two disciplines, nor do they properly appreciate what each does. It is only when they suffer severe musculo-skeletal pain that they might familiarise themselves with these alternative forms of pain resolution. It is the same with mediation: the disputant’s fist port of call will be a solicitor, who, like the GP, will recommend whether to pursue the conventional remedy or an alternative.
The current state of ‘encouragement to mediate’
The Working Group’s report identifies five areas where ADR has been “encouraged” (Para. 2.5) but acknowledges that whilst “almost all of these measures are well crafted and well thought out”, the system nevertheless is not working. The Report explores possible changes and make some recommendations directed at increasing the use of ADR. Yet it fails to address the fundamental conundrum – the global paradox – that bemuses all those involved in dispute resolution. In an article in the New Law Journal (April 2010) [see link http://www.paulrandolph.net/article-5.html], I described this conundrum by comparing litigation and mediation to two stain removers that can be found on supermarket shelves:
Why do disputants queue up to pay for and use a product that is extremely costly, very complicated, time-consuming and highly unpleasant to use, removing the stain in only 50% of cases, whilst leaving an unpleasant smell behind, when there is an alternative process that is quick, cheap, risk-free and easy to use, and removes the stain in over 85% of the cases – and leaves behind no unpleasant odours whatsoever behind?
In the supermarket world, the litigation stain remover would be out of business. Yet even in jurisdictions where the judiciary are renowned to be corrupt and where the court system is riddled with delays resulting in cases taking up to 25 years to come to court, (as in parts of India), disputants still flock to bring their dispute before a judge.
The Psychological answer
The answer lies not in our lawyers, but in ourselves. A factor that appears continuously to be overlooked is our psychological make-up. This is how I described it in an article in the New Law journal (April 2010): see link http://www.paulrandolph.net/article-5.html
‘As a species, we are not programmed to compromise, we are programmed to win—and in winning we want to see blood on the walls! We have an innate aggression, which, when we are in dispute, transforms itself from a mere instinct to “survive” into an acute need to crush the opposition. We no longer act rationally or think commercially; instead we are driven by an emotional craving to triumph.’
In the same article I go on to provide a biological explanation for this behaviour:
‘….it is the Amygdala, a part of our brain that controls our “automatic” emotional responses. From an evolutionary perspective, it governed the “fight or flight”
reflex, associated with fear of attack. The amygdala reacts to the threat of attack by
initiating a reaction within the brain which overrides the neo-cortex (the “rational”
thinking part) and physically precludes any reliance upon intelligence or application of reasoning’.
This is often described as an ‘Amygdala Hijack’ in that the thinking part of the brain is ‘hijacked and prevented from analysing matters from a logical, rational or commercial perspective. There is nothing more likely to trigger an Amygdala Hijck than an injustice. Parties come to a dispute invariably fuelled by a deep sense of injustice. They demand something which the other party is not prepared to give, or alternatively the other party is demanding something wholly unreasonably and without any proper justification. Each regards the other as the perpetrator of that injustice. It is unrealistic - and in some respects naïve - to expect those parties voluntarily to enter into mediation. An experiment in 2003 demonstrates graphically how deeply ingrained is our aversion to injustice. [See the experiment on YouTube at: https://www.youtube.com/watch?v=lKhAd0Tyny0]
Two monkeys are placed in separate cages side by side. Each monkey is given a piece of cucumber which they happily accept as a reward for a task they complete satisfactorily. The second monkey is then given a grape (preferable to cucumber!) and the first monkey sees this. When given another cucumber, the first monkey angrily rejects it, hurling it back in rage at the experimenter, and violently shaking the cage in frustration.
This reaction to injustice is so powerful as to cause a primate, contrary to all natural instincts, to reject food.
The simple truth is: mediation is not natural; it is wholly counter-intuitive. To sit down with our arch enemy – the author of the injustice - and seek an amicable resolution, particularly if it involves a compromise (i.e. giving up something to which we believe we were fully entitled) goes against all our Darwinian predispositions. So the real and sad fact is that, left to our own devices we will rarely, if ever, choose to mediate rather than have our day in court. Our legal system, to some extent, is the victim of its own success: our judges command such huge respect that they are seen as the unique holders of the one ‘objective truth’ which will provide vindication of our position, and so our courts are seen as the only certain route to securing justice.
In paragraph 8.5.4 of the report, the Working Group suggest that one of the arguments in favour of compulsion is that
“if you let the parties waste energy and costs arguing about whether or not to mediate they will do so, generally for tactical/positional reasons”.
However, I would suggest it goes much further than that: without some element of compulsion, mediation will never be the DR process of choice, but will continue to be used as a last resort rather than the first resort. Mediation will only begin to look attractive as an alternative when both funds and energy have been exhausted; when the stress of protracted litigation has become overwhelming; when the dispute has resulted in business profitability diminishing; marriages put under strain; health adversely affected. Only then will parties be ready to sit at the mediation table.
The problem may be one of perception. Mediation is rarely seen as being capable of providing the litigant with the outcomes that he or she really needs, namely
Mediators cannot offer any of these. On the contrary, mediators try to persuade parties that the process is not about vindication nor about revenge; and that the parties may need to prepare themselves to secure less than they have been asking for. And that because of the voluntary and consensual nature of the process, the process may be terminated at any stage so there can be no guarantee of finality. None of this is what the litigant wants to hear.
The time has come for us to make some stark choices: do we want to spend another 25 years scratching our heads, wondering why those in dispute continue to choose the more painful option? In 2007, the National Audit Office report came to similar conclusions to those of the CJC, namely that despite all the known advantages, too few litigants were trying mediation; and that more needed to be done to promote the process. It is scandalous that 10 years on, little has changed. To continue the same measures of encouragement as have been tried, and failed, over the past 25 years, and expect a different outcome, is surely insane? How many more times will we hear stories of parties squandering obscene sums of money on legal fees, and losing vast amounts of precious time and energy blighting their daily lives in litigating seemingly petty squabbles? How often must we hear Judges declare in exasperation: “this case should have been mediated” – before we say ‘enough is enough’?
The consultation period for the CJC Report, due to end on 15th December, will allow those in the mediation community who are convinced of the need for an element of compulsion, to put forward reasoned arguments, which might serve to persuade the Working Group to come round to the views of its “significant minority”.
But let us first abandon the description ‘compulsory mediation’ and substitute in its place the term ‘automatic referral’. Compulsion is a toxic concept. Nobody, least of all lawyers, appreciate being told what to do - and least of all by Government. We may also need to revisit the word ‘mediation’ which has acquired an unfortunate connotation of ‘splitting the difference down the middle’ – in other words: compromising. This is unattractive to most litigants.
The Interim Report provides a great opportunity for a constructive transformation of the Dispute Resolution landscape. The Government would do well to grasp the nettle and take the bull by the horns (or any other suitable metaphor) to effect this beneficial and necessary change. The CJC Working Group got it exactly right when they noted (at paragraph 9.18(a)) a potential advantage of pre‐action compulsion:
“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.”