Civil Mediation Reform: Balancing the Scales of Procedural and Substantive Justice

Abstract

Courts in multiple jurisdictions face the challenge of reconciling procedural and substantive justice in designing court mediation programs. How such programs provide opportunities for party-directed reconciliation on the one hand, while ensuring access to formal legal channels remains an area of continued inquiry In some jurisdictions, mandated programs require initial attempts at mediation, while in others, voluntary programs encourage party-selected participation. This paper explores initial comparative empirical findings examining the impact of judicial mediation structure (mandated or voluntary) on perceptions of justice, efficiency and confidence in courts in 10 jurisdictions by investigating whether, and if so how, variation in civil mediation policy as one factor, affects variation in judicial efficiency, confidence in courts, and perceptions of justice. Given the highly contextual nature of court mediation programs, the paper highlights achievements, challenges and lessons learned in the implementation of mediation programs for general civil claims. The principal finding indicates that overall, while both voluntary and mandatory mediation programs demonstrate unique programmatic strengths and are associated with positive gains in the advancement of civil justice quality, sampled voluntary mediation programs are associated with a higher proportion of longitudinal advancement over a five year time period in levels of efficiency, with a slightly higher proportion of advancement in terms of confidence and perceptions of justice within sampled civil justice systems. At the same time, from the perspective of the 83 court mediation practitioners surveyed, practitioners report slightly higher levels of confidence in mandatory mediation programs, higher perceptions of efficiency with respect to voluntary programs, and regard voluntary and mandatory mediation programs with relatively equal perceptions of fairness. Program achievements largely depend on the functioning of the civil litigation system, the qualities and skill of the mediators, safeguards against bias, participant education, and cultural and institutional support.