A substantial proportion of parties and representatives interviewed about unsettled mediations in the ARM scheme felt that they had been pressed into mediating, although mediating claimants and their lawyers were less likely than defendants to feel that they had been pushed into mediating. About 40% of interviewed claimants, whose cases had not settled at mediation, felt that they had been forced to mediate; whereas about two- thirds of defendants and their representatives, who had not settled, felt that they had had no choice about mediating.
Feeling that mediation was a good idea – no pressure
Among those parties who believed they had a choice about the ARM referral, several said that in the end they had simply taken the advice of their lawyer to go ahead and mediate. However, there were also some who believed that they had a choice. They had mediated because they wanted to and felt there was something positive to be gained from the process. This feeling was more prevalent among claimants and their representatives who attended ARM mediations than among defendants and their representatives.
“Why shouldn't I? It's doing me a favour. My representative recommended it. I've been waiting so long for this case, about 6 years.” [Claimant PI]
“I always wanted to mediate, it was very common sense. The reason I went, rather than going to court, even though I felt I had a very strong case, was my solicitor advised me to try and settle, so I followed his advice, he's a professional, so that was the reason we went to mediation, because of my professional legal advice rather than any personal one.” [Claimant non-PI]
“It seemed the most sensible thing because had it gone to court the costs involved would have been totally disproportionate to the amount we were suing the defendants for.” [Claimant non-PI]
“Because for nearly a year I'd been trying to just speak to the people involved and say 'Why won't you pay it? Why haven't you paid it?' I wrote to them, I emailed them, you know, I rang them, they never, ever responded and it was incredibly frustrating because they gave no reason ever for not paying me. So I thought after all this time... by this stage I didn't want to go to mediation because I thought 'Why? I've spent all this time, and now money, and gone to all this effort, I want to see them in court and I want to make them pay' and then I suddenly thought, 'Don't be like that, you were trying for months and months and months just to get some response from them, and now they're saying let's go and sit down in a room and talk', then you've got to sort of take that really. Plus, I'd
been advised by my solicitor that it was a good thing to do, to be seen to be doing everything that you can to, not to waste the court's time.” [Claimant non-PI] “Yes - I thought there was no harm in going to mediation because it could have been a benefit to my clients, so I didn't feel I was forced into it, no.” [Claimant rep PI]
“I think the other side invited me to come to mediation because they’d been denying liability all along. I thought it was a good case, and I said to them I didn’t want to mediate if they were going to take that line, and then they said ‘Well there’s no harm. How did you feel about the automatic referral? Because I’d asked for it, I didn’t mind you know. It didn’t feel like automatic. I did feel I had a choice, yeah.” [Claimant rep PI]
“The predominant reason [to mediate] was because you think there’s a decent chance of a settlement emerging from it, either on the day or shortly afterwards. That was the main reason...I felt we could have said no if we wanted to…There are cases where a very big push towards mediation is required. I think one might argue with the terms automatic referral or compulsory-ish. I think the language might be a bit clearer, but I think there’s a lot to be said for a very heavy shove towards mediation.” [Def rep non-PI – Mediator solicitor]
One or two interviewees were more negative about the decision to mediate, indicating that although there was a choice, the choice was rather limited given the practicalities of the process so that opting out might actually increase delay in settlement. For example: “There was no point in trying to opt out because the delay in opting out would be longer than the delay involved in going to mediation.” [Claimant non-PI]
Feeling that there was no choice
On the other hand, there were some robust statements made about ARM among
mediating parties and representatives whose cases had not settled and who had felt that they had been pushed into mediating by the court. Where interviewees felt that there had been no choice about whether to accept the referral to mediation, this tended to be expressed as concern about costs penalties that might subsequently be imposed as a result of resisting the referral from the court. For example:
“And how did you feel about being automatically referred to mediation? I didn’t like it. Well because I am a practitioner of some twenty five years’
experience and regrettably I think I know more about my job than any mediator’s going to. And of course we can do what I take to be mediation, which is two people, one in one room, one in the other, and somebody wandering between saying ‘Well you know, where is the middle figure?’ And so to that extent you know, I consider I can do my job…I said I was prepared to submit to mediation. I felt I had no choice. You know, the cost penalties nowadays.” [Def rep PI
“We were ordered to mediate by the Court. Obviously they can’t force us to mediate but they might hold it against us if we didn’t mediate, so although we were not very keen on the idea, we agreed to mediate as did the other side and basically it came to nothing.” [Def rep, non-PI, unsettled mediation]
“We felt the courts would take a dim view of us refusing to mediate basically. If we refused to mediate the court could order us to mediate in any event. We thought we'd rather jump than be pushed.” [Claimant rep, PI unsettled mediation] “The Court was operating the scheme and sort of pushed in that direction so I think that was the principal reason. I guess we did have a choice, but we would have had to justify why it wasn’t appropriate and because it was the first occasion I thought it was not a bad idea to see whether it was going to resolve matters... A lot of cases are being subject to this and a lot of them aren’t appropriate...My own view is that there should be some form of sifting out, which would hopefully eliminate automatic referral of some cases that just aren’t going to be resolved in that way”. [Claimant rep Police action, unsettled mediation]
“Why did you decide to mediate in this case? Because the Court told us we had to. And did you feel that you had a choice about whether or not to mediate? No…The client didn’t want to mediate because he couldn’t see the point of doing it, but because the Court had ordered us to go to mediation we had to do it… I thought it was not the best way because the better way would be to identify cases which were likely to settle, as opposed to automatically picking one of out ten which I understand, or what the Courts have told us they do, they don’t look at the cases, it’s just number crunching and they’re picked out automatically…My client had been claims handling litigation for twenty two years and he didn’t agree with it, but said he would give it a go because the Court had ordered us to do it .I’d been to mediations at Central London County Court before, so I did know what to expect. You’re given three hours, you’re put in a stuffy room and you’re very much bullied into trying to settle it with the Security Guard outside at 7 o’clock... Did you go to the mediation expecting to settle this case? No. So what were you hoping to achieve? I wasn’t hoping to achieve anything. I was doing it because the Court had ordered me to do it and I didn’t want to get a costs Order against my client if we refused to mediate…The only advantage I could see from that mediation was I got to see the Claimant in person, so I know in advance what she’s going to be like in the witness box…It wasn’t going to settle. It still hasn’t settled. It was a bit pointless really.” [Defendant rep, PI case, unsettled at mediation and proceeding to trial]