The question of whether mediation should be mandatory will become moot in the digital justice system currently being built, the Master of the Rolls said last week.
The system will have a single web-based entry point, where users will be directed to an appropriate pre-action portal, with the ability to enter the online court system thereafter if required – and ultimately the physical court.
Giving the Chartered Institute of Arbitrators’ Roebuck Lecture, Sir Geoffrey said the process behind both the portals and the courts “will be directed towards identification and early resolution of the core issues that divide the parties”.
He explained: “The process will use what I call ‘decision trees’, a series of questions guiding parties to the identification of the issues in the case, so as to obviate the need for lengthy complaints or statements of case, and highlighting where agreement already exists.
“Mediated interventions aimed at securing compromise will be integrated at every level.
“Those interventions will employ every available method from algorithms suggesting resolution of interim or interlocutory issues (or even the ultimate dispute between the parties) to online human mediation to early neutral evaluation by judges or remote or face-to-face mediations.”
While acknowledging that mandatory mediation has long been a controversial idea, Sir Geoffrey said it was “obvious” that this so-called digital funnel would “ultimately render the issue of mandation academic”.
He went on: “Mandation may still remain a useful tool in the box in some specific kinds of case as we build the digital justice system, but it is likely in the future to be unnecessary to impose a mandatory formal mediation at a particular stage in every case.
“The frequency and diversity of suggested mediated interventions will mean that the parties will inevitably be exposed to the possibility of compromise at times when they are amenable to it.”
Last summer, a Civil Justice Council (CJC) group concluded that any form of compulsory alternative dispute resolution which was “not disproportionately onerous and does not foreclose the parties’ effective access to the court” was lawful, a finding Sir Geoffrey has endorsed.
In February, a separate CJC report proposed compulsory mediation for small claims and Sir Geoffrey said in his speech that this “will hopefully be introduced shortly”.