Regulating civil mediation in England and Wales
Towards a ‘win–win’ outcome
DOI:
https://doi.org/10.1558/mtp.31937Keywords:
law, regulation, interests, values, contentionAbstract
Civil mediation in Britain has rapidly moved away from being an option, for private choice, to becoming increasingly a compulsory or near-compulsory part of the public justice system. But regulation of the mediation industry remains minimal, and undertaken on an essentially private, self-regulatory basis. This raises a perception or actuality of risk that mediation and its regulation may better serve the interests of stakeholders in the mediation industry than the individual citizen who may come to mediation as a one-off player with no available alternative dispute resolution mechanism. This article argues that there are ‘public interest’ values and expectations of a constitutional and democratic nature at stake here which require recognition and protection via an effective and credible regulatory regime. It concludes that such a solution may in reality serve the interests both of the mediation industry and those individuals who may come into contact with it, offering a ‘win–win’ outcome.
References
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Woolf Report (1996) Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO.
BIS (2014) Alternative Dispute Resolution for Consumers: Government Response to the Consultation on Implementing the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation. London: Department for Business, Innovation and Skills. BIS/14/1122. Retrieved on 12 September 2016 from www.gov.uk/government/consultations/alternative-dispute-resolution-for-consumers.
Boon, A., Earle, R. and Whyte, A. (2007) Regulating mediators? Legal Ethics 10: 26.
Briggs, M. (2016) Affordable dispute resolution for all: a reform case study. Tom Sargant Memorial Lecture 2016. Retrieved on 29 November 2016 from https://2bquk8cdew6192tsu41lay8t-wpengine.netdna-ssl.com/wp-content/uploads/2016/10/Lord-Justice-Briggs-JUSTICE-lecture-Oct-2016.pdf.
CMC (2013) Registration of individual mediators and mediation training courses. Document for CMC AGM, December. Unpublished.
CMC (2015) Civil Mediation Council plays a key role in establishing All Party Parliamentary Group. Press release, 25 November. Retrieved on 12 September 2016 from www.civilmediation.org/news/press-release/104.
CMC (2016) All Party Parliamentary Group on ADR. Retrieved on 12 September 2016 from www.civilmediation.org/newsletters-online.php?f=362.
Dezalay, Y. (1998) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (2nd edn). Chicago, IL: University of Chicago Press.
Feintuck, M. (2004) ‘The Public Interest’ in Regulation. Oxford: Oxford University Press. https://doi.org/10.1093/acprof:oso/9780199269020.001.0001
Fouzder, M. (2016) Briggs: online court will take the A out of ADR. Law Society Gazette (26 September). Retrieved on 29 November 2016 from https://www.lawgazette.co.uk/law/briggs-online-court-will-take-the-a-out-of-adr/5057914.article.
Fuller, L. (1970) Mediation – its form and functions. Southern California Law Review 44: 305.
Genn, H. (2010) Judging Civil Justice. Cambridge: Cambridge University Press.
Health and Care Professions Council (2016) Regulation of further groups. Retrieved on 12 September 2016 from www.hpc-uk.org/aboutregistration/aspirantgroups.
Hinshaw, A. (2012) Regulating the rogue mediator. Retrieved on 12 September 2016 from www.indisputably.org/?p=4133.
Jackson Review (2010) Review of Civil Litigation Costs: Final Report. London: The Stationery Office. Retrieved on 29 November 2016 from www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf.
Professional Standards Authority (2016) What we do. Retrieved on 12 September 2016 from www.professionalstandards.org.uk/what-we-do.
Roberts, M. (2005) Family Mediation: the development of the regulatory framework in the UK. Conflict Resolution Quarterly 22(4): 509–26. https://doi.org/10.1002/crq.118
Roberts, M. (2014) A–Z of Mediation. London: Palgrave. https://doi.org/10.1007/978-1-137-00299-0
Roberts, S. and Palmer, M. (2009) Dispute Processes: ADR and the Primary Forms of Decision-Making. Cambridge: Cambridge University Press.
Thomas, Lord Chief Justice (2016) Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration. Retrieved on 12 September 2016 from www.judiciary.gov.uk/wp-content/uploads/2016/03/lcjspeech-bailli-lecture-20160309.pdf.
Waldman, E. (ed.) (2011) Mediation Ethics: Cases and Commentaries. London: John Wiley & Sons.
Woolf Report (1996) Final Report to the Lord Chancellor on the Civil Justice System in England and Wales. London: HMSO.
Published
2017-06-16
Issue
Section
Policy Articles
How to Cite
Whitehouse, M. (2017). Regulating civil mediation in England and Wales: Towards a ‘win–win’ outcome. Mediation Theory and Practice, 2(1), 69-83. https://doi.org/10.1558/mtp.31937
