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Litigants not listening to sense
Litigation Still Preferred To Mediation By Vast Majority
The Law Society Gazette has just published the results of an MoJ poll showing that the vast majority of litigants are still shunning mediation – despite wanting an out-of-court settlement.
In the court users’ survey for 2014/15 (full survey here) only 23% of claimants had entered into formal mediation, despite 86% of them asking for an out-of-court settlement. This should come as no surprise to mediators, though it may be very disappointing. We mediators have been scratching our heads for the last 25 years wondering why such a good product is not selling, whilst people queue up for litigation, the more costly and risky alternative.
Psychological reluctance to mediate
The answer, as I have maintained for many years, is neither rational nor commercial: it is psychological and emotional.
New Law Journal February 2011: “The Mediation Conundrum” – why mediation needs a makeover or a nudge from Government”
(2nd down on the page)
New Law Journal April 2010: “Compulsory Mediation” – urges Government to consider imposing a little compulsion in mediation”
(5th down on the page)
Litigants essentially want four things:
1. Vindication: to be proved right
2. Revenge: for the other party to suffer in the same way as they have
3. Humiliation: for the other party to be publicly shamed in court
4. Retribution: to recover every single penny or element of loss
Mediation can offer none of these – we can only urge collaboration, conciliation and compromise. These are the last things an angry litigant wishes to hear.
The Attraction of Court
Court proceedings, on the other hand, seem able to offer everything the claimant wants. This is borne out by a further finding in the survey: that 78% of claimants expected to win in court. Here we are the victims of our own success: we have a judicial system that most litigants trust implicitly as being certain to deliver ‘justice’. The naïve conviction – that the one person who will see that they are right is the judge – overrides all logical and commercial reasoning. Emotions overwhelm reason, and common sense flies out of the window.
It will therefore always be an enormous challenge to persuade bitter enemies to sit at a table and mediate a compromise. Those who perceive themselves to be the victims of a huge injustice at the hands of another are not ready to be conciliatory or collaborative.
So it will need a great deal more than cogent, logical, reasonable and rational argument to draw litigants to mediation. Some form of compulsion may be the only answer. But let’s not call it ‘compulsory mediation’. The word ‘compulsory’ seems to send shivers down the spine of many purist mediators, as well as judges and MoJ officials. Let’s stick to ‘automatic referral’ – and automatically refer all claims to a mediator. Unless we grasp this nettle, we mediators will be sleep-walking into oblivion.