It may appear to outsiders to be bizarre that the main aim of English civil procedure is to avoid litigation. A legal system has become so complex and expensive that those in charge of it advise users to avoid it if at all possible. Alternative dispute resolution (ADR) is highly recommended by the drafters of the reformed civil procedure rules. It is expressly stated that litigation should be a last resort. A refusal to consider ADR may have costs implications – once again, money is the key.
Mediation is one form of ADR. It consists of a sort of shuttle diplomacy between the parties and their legal advisers with the aim of settling disputes out of court.
Some clients have concluded that mediation has developed into yet another money-making quasi-legal racket. Its aim is to avoid litigation and it is said to be cheaper than litigation, which gives plenty of scope for high charges.
There is an absurdity about a system of civil procedure which is so expensive to operate that claimants are urged to use it as a last resort and to seek alternative means of dispute resolution. This means, in effect, that the massively sophisticated machinery for civil claims is available only to the very rich.
There is every chance that we are witnessing the development of another layer of legal procedure which, although not expensive to the crippling extent of full-tilt litigation, still costs more than most people can afford. Alternative dispute resolution is now, effectively, compulsory because a refusal to mediate carries costs implications.
The potentially rich pickings of mediation are illustrated by a circular advertising a commercial mediator training course at a cost of £1495 plus VAT. A worthwhile investment in another layer of law for the rich.
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