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Why isn’t mediation used more often in regulatory and public law cases?

Featured ArticleWhy isn’t mediation used more often in regulatory and public law cases?

By Josef Cannon, barrister and mediator, Cornerstone Barristers

Mediation has a remarkable success rate for resolving disputes: the latest research (from the Centre for Effective Dispute Resolution’s tenth Report on the mediation industry) suggests it might be as high as 92%: 72% of cases settling on the day of the mediation, with a further 20% shortly afterwards. The same Report estimates that around £5.9 billion is saved each year by businesses using mediation to settle disputes, instead of litigating. There is a flourishing cadre of excellent specialist mediators, and mediations can be arranged and conducted in very short order, including online where necessary. Mediation can preserve and often even improve relationships between parties to a dispute (unlike litigation, which tends to destroy them permanently) and so is especially valuable where the parties to a dispute will need to engage with each beyond the scope of the dispute at hand. It can encompass wide-ranging and imaginative solutions, and is conducted confidentially and without prejudice.

Much of our legal system knows and understands this. Mediation is at the heart of commercial dispute resolution and has been for some time. In family cases, referral to mediation is a central part of the procedure. The MoJ has just consulted on the introduction of mandatory mediation for small claims.  Meanwhile, the Court of Appeal is about to decide a civil case in which the central question is whether the courts can require mediation before allowing litigation to proceed (Churchill v Merthyr Tydfil CBC).

Public bodies (such as local authorities) use mediation extensively when operating in their private capacity – for example, as employers, or landowners – but my experience (as a mediators and a barrister acting for and against local authorities) is that mediation plays almost no role in the resolution of disputes in the public sector. Are there good reasons for this? Are the benefits of mediation not available to those acting in the public sector?

 

Mediation is, in simple terms, co-operative dispute resolution facilitated by an independent and impartial third party. The mediator does not offer advice or adjudication on the merits of a dispute but will assist and encourage the parties to look differently at the dispute at hand, to focus on their interests rather than their positions, and attempt to foster collaborative working towards a mutually acceptable solution. Mediation is always without prejudice to the underlying litigation, and can be conducted confidentially and at the parties’ convenience. Parties usually share the cost. A mediator can often be engaged at relatively short notice and a mediation set up and conducted within a matter of days. Mediations can be conducted in person at a neutral or mutually acceptable venue, or online via (e.g.) Zoom. A mediation can comfortably accommodate multiple parties.

None of those features appear to be incompatible with resolving public sector disputes. There are, though, some features of public sector disputes which are often seen as challenges for mediation as an alternative to expensive and protracted litigation:

  • Public sector disputes often arise within a binding statutory scheme (for example, the provisions of the Town & Country Planning Acts) which is often quite rigid about what can (and cannot) be done about certain situations. Some schemes allow for a degree of flexibility and discretion, but many do not, and in such cases mediation may have a more limited, albeit still valuable, contribution to make;
  • Public sector disputes are also usually concerned, in some way, with the public interest, so they often require the input (at least) of third parties – objectors to planning applications, for example, or those wishing to make representations about a licensing application. Multiple parties means more complexity – both in agreeing to send a dispute to mediation but also in the conduct of the mediation itself (and the range of potential solutions). Whilst this is a challenge, it also represents an opportunity – mediation tends to be better than litigation at accommodating multiple stakeholders in a way which gives them ‘a voice’;
  • It is true that the focus of public sector disputes is very rarely a sum of money (whether damages, compensation etc.) and so what is sometimes thought of as the ‘classic’ task of alternative dispute resolution (i.e., reaching agreement on an acceptable sum) is not usually relevant (although, of course, mediations regularly deal with – and resolve – cases which turn on very much more than a sum of money). In fact, my experience is that mediation is often much better placed to resolve disputes which don’t concerns sums of money because of its ability to envisage and encompass imaginative and bespoke solutions to seemingly intractable problems);
  • Often – for example in planning – officers of a local authority cannot bind or fetter a statutory discretion exercised by members of that authority – so in planning disputes, for example, officers cannot usually agree to grant planning permission, a power reserved (in general terms) to the local politicians, albeit often following the advice of their officers. In such circumstances the potential of mediation to deliver ‘full and final’ settlement of a dispute is more limited, although it is not uncommon for a mediation settlement to be subject to ratification by the appropriate body, or via the appropriate procedure.

On the other hand, there is much in public sector dispute resolution to suggest that mediation is worth more than the scant regard it is presently paid in that sphere. Public law litigation is usually expensive, time consuming and rigid, the money it costs is usually public money, paid by council taxpayers, and the time it takes usually the time of hard-pressed council employees, again paid by the public purse. In this context it is important to remember that all public bodies are under a duty to use their resources efficiently and effectively.  Relationships (i.e., between landowners and local planning authorities) will often need to survive and persist beyond resolution of the dispute at hand, so the unique potential for mediation to ‘lower the temperature’ and promote better relationships is an obvious benefit in this context. Chronic underfunding of public authorities for many years has resulted in remarkable backlogs for the dispute resolution process: for example, the latest published figures[1] from the Planning Inspectorate suggest that the mean number of weeks from a valid planning enforcement appeal to a decision being issued is 61.9 weeks; where the (most procedurally complex) inquiry procedure is used that increases to 106.9 weeks, more than two years; by contrast mediation is fast. And as is well known, mediation can be confidential, private and discreet, meaning that it can help to deal with disputes before the ‘optics’ get out of hand.

In my view, the great and overarching attraction of mediation is its flexibility. There are no set rules of engagement and the parties (whether two, or many) are entitled to design their mediation to suit their needs. The potential solutions are similarly flexible: a mediation agreement can record agreed matters that go way beyond what a court or tribunal could award. They are also not ‘all or nothing’: mediations often settle some, but not all, of the issues, narrowing the scope of a dispute and potentially helping to speed up resolution of the remaining issues, often quicker. They can pause, take a break, reconvene; they often result in a better and less antagonistic way of engaging with the ‘other side’. Those features of mediation suggest, to me at least, that mediation has far more potential for playing a role in resolving public sector disputes than it does at present, and I regularly advise public sector clients (and those in dispute with public bodies) to consider whether mediation could help.

As with anything, mediation won’t be suitable for every public sector dispute, and nothing in this article should be read as suggesting it is a panacea; but given the extraordinary statistics it can boast in resolving disputes generally, together with its ability to flex to accommodate new or unusual circumstances, I think it is at present under-exploited in this sphere.

Lastly, and given that this article is likely to be read primarily by barristers, is mediation a threat to our earning capacity? Does sending a case to mediation mean the loss of our traditional route to chunky brief fees? I think not. Clearly, the point is to settle a case early and save costs, including legal costs: that is always in the client’s best interests if it can be done. Such an outcome might mean, for example, losing a brief fee for the planned public inquiry coming up. Set against this, though, a few observations:

  • Mediations are often assisted by having the parties’ legal advisors there: I am regularly instructed to appear as counsel in mediations. A brief fee is payable for such work;
  • Mediating a case to settlement frees up diary space to take on more cases: and so more brief fees;
  • Mediation won’t do away with public sector litigation, as I have said: many cases will not be suitable for mediation in any event; and
  • Ultimately, if you can help a client to a satisfactory settlement via mediation, saving them time, money and heartache, they are likely to instruct you again and again.

Josef Cannon, barrister and mediator, Cornerstone Barristers

[1] https://www.gov.uk/government/statistics/planning-inspectorate-statistical-release-27-april-2023/planning-inspectorate-statistical-release-27-april-2023

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