It is a case of déjà vu. The current discussions in the UK (and elsewhere) concerning the possible introduction of mandatory mediation bring back memories of my work on the same topic in Australia, some 14 years ago. It was this work that turned me from a “reluctant starter” to a “willing participant”, ultimately supporting the use of alternative dispute resolution (ADR) processes, including mediation, as a mandatory preliminary step antecedent to the commencement of court processes (mandatory ADR).
The “Resolve to Resolve” Report
In 2008 and 2009, I worked on “The Resolve to Resolve – Embracing ADR to improve access to justice in the federal jurisdiction” (Report). The then Attorney-General, The Hon Robert McClelland, had commissioned the National Alternative Dispute Resolution Advisory Council (NADRAC) to prepare it. He launched the Report on 4 November 2009.
Among other things, the Attorney-General was keen to identify ways to increase the use of ADR. Thus, one important topic for us was the vexed issue of mandatory ADR. This was not a new topic. Already, the Australian Parliament had mandated the use of mediation to resolve family law disputes. Also, in the early 2000s, Australian courts embraced court-ordered mediation as part of their procedural rules. Both approaches could certainly increase the use of mediation. But compelling parties to mediate had been, and remained, controversial. We faced many questions and, reflecting on the extensive consultation process we conducted, perhaps even more answers. Finally, NADRAC recommended the introduction of a mandatory “genuine steps requirement” in civil proceedings, compelling parties, subject to some exceptions, to attempt the resolution of their dispute using ADR before commencing civil litigation. Mediation played a central role in this regard.
The begin of a journey
I am a strong believer that mediation is very well suited to enable parties to resolve even their most complex disputes. Ideally, the parties decide to go into mediation as early as possible and before they become positional. To me, mediation should (ideally) occur at the earliest opportunity and well before the commencement of litigation. Because when a mediation is conducted after commencing litigation, then the parties’ positions are already entrenched, cast into legal terms by the parties’ legal advisors, and the parties think in terms of winning and losing. For an interest-based process, that seeks to generate win-win solutions, this is not an ideal environment.
So, how do you increase the early use of mediation and other ADR processes? We knew that past efforts, including soft options such as establishing ADR-friendly frameworks, public relations campaigns, or appealing to common sense, had either failed or had produced only marginal successes. Looking towards legislating mandatory ADR was of course an option, but such a mandate raised complex questions. Is this a threshold for accessing a court that is too high, thus impacting access to justice? Does such a mandate alter a dispute resolution process that, at its core, is based on voluntariness? Would parties collaborate to resolve their dispute despite being mandated to participate in the process?
My starting point: mediation, a voluntary dispute resolution process
For many, including myself, mediation is a voluntary alternative dispute resolution method. Its voluntary nature is one of the hallmarks of mediation, often hailed as a key characteristic of its success. Voluntariness is to apply to every step of a mediation. It includes that parties voluntarily:
- consent to mediation as their path to resolving their dispute;
- attend a mediation;
- remain in a mediation; and
- discuss their interests, find their solutions, and agree on the settlement terms.
Neither will parties be forced into or remain in a mediation, nor will anyone dictate an outcome or pressure a settlement. It is a party-driven process, facilitated by the mediator. The parties remain in control of the process and the outcomes, and the voluntary nature of the process is further evidenced by each party’s ability to end a mediation – unilaterally, at any time, and without giving reasons.
There are several reasons why voluntariness has been identified as this key characteristic for the success of mediation. For example, it is closely linked to, or the anchor point for, other important features of the process, including the self-responsibility and -determination of the parties, or the essential trust in the mediator and the process of mediation itself. Yet, one reason stands out for me particularly. It is that voluntary participation in a mediation, and seeing the mediation to an end, increases the chances that the parties fully own the solutions they find and, with that, the terms of the settlement they reach. It is this ownership in the outcomes of the mediation that significantly strengthens the parties’ resolve to comply with the mediated settlement.
My question: is mandatory mediation still a voluntary process?
Initially, my reaction to mandated ADR was one of rejection. The voluntary nature of mediation and mandating it seemed antithetical. I could not reconcile how parties compelled to mediate would have the requisite open, creative mindset, willing to find their solutions and ultimately own the terms on which they settle their dispute. Rather, I anticipated parties to be closed, uncooperative, even obstructive, and present at the mediation only to tick a box on their way to litigation. Moreover, how would they own outcomes when they had to participate in a process they didn’t want to be part of? And there was a question concerning a possibly significant limitation of people’s access to justice.
At first, mandating mediation seemed like a poor policy choice.
My transformation: yes to mandated voluntariness.
Initial reactions must be questioned, tested, and, if necessary, corrected. A general paucity of reliable empirical evidence made this difficult, though, and required a different approach to developing evidence-based policy around mandatory mediation. We examined comparative experiences in other domestic, regional, and international jurisdictions, and conducted a comprehensive stakeholder consultation.
And the deeper we drilled into the issue, the further I abandoned my initial rejection. Lingering doubts about mandatory ADR evaporated and I did no longer consider a mandate antithetical to voluntariness. Two articles most prominently changed my view at the time.
The first article had been written by Professor Frank Sander and was published in 2000. Sander stated that: “[t]here is a difference between coercion into mediation and coercion in mediation.” [emphasis added]. This is an essential distinction between the path into mediation and the process of mediation itself. While the latter must remain voluntary and free of coercion, the first may indeed be mandated. It was apparent that with the correct policy settings it was possible to require parties to mediate at a particular point in time without interfering with one of the hallmarks of mediation: voluntariness.
My concerns concerning the parties’ attitude towards or during a mandated mediation were alleviated by an article published in 2001 by the then Chief Justice of NSW, the Hon CJ Spigelman. His Honour reflected on the introduction of consensual and non-consensual court-referred mediation in NSW and wrote: “There is a category of disputants who are reluctant starters, but who become willing participants.” His Honour observed that where parties participated in a mediation, and as they experienced its benefits and the skillful facilitation through the mediator, their attitude changed, and they willingly participated. While His Honour made these observations in relation to court-ordered mediation, it was open to assume that a similar change in attitude would occur irrespective of the method and the point in time at which mediation was mandated. And indeed, commentators have now confirmed these observations, referencing evidence that shows that settlement rates (and satisfaction with the process) remain similar, whether mediation had been mandated or not.
Fast-forward 14 years: still a willing supporter of mandatory mediation.
Working on the Report changed my views on mandating the use of ADR, including mediation, as a preliminary step antecedent to the commencement of court processes. The consultations, plenty of discussions with ADR experts and colleagues, and the deliberations, analysis, and careful consideration of the advantages and drawbacks of a mandate, I turned from a “reluctant starter” into a “willing participant”, fully supportive of efforts to mandate mediation.
This has not changed. I am still convinced that the use of ADR, including mandatory mediation, as a preliminary step prior to litigation should be mandated by law. This seems to be the most effective way to achieve change towards the increased use of ADR. This is facilitating change through mandated participation in ADR processes, including mediation.
Change through the mandatory experience of a voluntary process. Mandated voluntariness.
 I borrowed this language from the then Chief Justice of New South Wales (NSW), the Hon Chief Justice JJ Spigelman who used it in an extra-curial publication written on the introduction of court-ordered consensual or non-consensual mediation in NSW. See JJ Spigelman “Mediation and the Court”  AUConstrLaw 5, p. 8.
 The National Alternative Dispute Resolution Advisory Council (NADRAC), The Resolve to Resolve – Embracing ADR to improve access to justice in the federal jurisdiction, The Commonwealth of Australia (2009). A copy of the Report is available at https://apo.org.au/node/67039.
 The Hon Robert McClelland’s media release marking the launch: https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FHIAV6%22;src1=sm1.
 This pre-filing mandate must be distinguished from court-ordered mediation, ordered under a power granted under civil procedure laws or the court rules and, typically, part of the judiciary’s case management tools; or mediation mandated under contract, i.e. the result of party autonomy.
 These recommendations included, among others, the introduction of legislation “imposing an obligation on prospective litigants to take genuine steps to resolve disputes before court […] proceedings are commenced”. This “genuine steps requirement” was to be supported by “guidelines, specific exceptions, requirements on legal practitioners, obligations on parties, and the conferral of power of courts to make various orders, all of which will encourage greater consideration and/or utilisation of ADR”, including mediation. NADRAC, The Resolve to Resolve – Embracing ADR to improve access to justice in the federal jurisdiction, Commonwealth of Australia (2009), p. 2.
 The Attorney accepted this recommendation, and the genuine steps requirement was legislated in 2010. The Civil Dispute Resolution Bill 2010 (Cth). The Explanatory Memorandum to the Bill lists some examples of things a person may do as part of taking genuine steps to resolve a dispute. The requirement is not limited to using ADR to resolve the dispute, but ADR, including mediation, is included in the list. See Cl 4, d), e) and f).
 I do not oppose court-ordered mediation which can be successfully conducted by skilled mediators who can expose interests and reach solutions.
 In Australia, as in other jurisdictions, arises an important constitutional question, namely, whether mandating mediation as a pre-filing step may impact a right to access the courts or a judge and the judicial quelling of a dispute.
 Compare J M von Bargen, Gerichtsinterne Mediation, Mohr Siebeck (2008), at p. 18
 F A Sander “The Future of ADR” (2000) Journal of Dispute Resolution 1, at pp. 7 – 8.
 This distinction has supported courts finding in favor of mandatory mediation laws, including for example the European Court of Justice (ECJ) in relation to mandatory mediation in Italy. See Menini and Rampanelli v Banco Populare (ECJ, C75/16 of 14.06.2017, para 51 – 55, discussing the voluntary character of ordered mediation).
 The Hon JJ Spigelmann CJ “Mediation and the Court”  AUConstrLawNlr 17, p. 8.
 J M von Bargen, Gerichtsinterne Mediation, Mohr Siebeck (2008), at p. 18. A Limbury “ADR in Australia” in JC Goldsmith, A Ingen-Housz, GH Pointon, ADR in Business: Practice and Issues Across Countries and Cultures, Vol 2, Kluwer Law International B.V (2011), p. 446.