Mediation in Judicial Review: a practitioners' handbook

Mediation in Judicial Review: a practitioners' handbook

What place does mediation have in judicial review cases?

What place does mediation have in judicial review cases? Research by the Public
Law Project (PLP) and the University of Essex on the permission stage in judicial
review concluded that most judicial review claims are settled and that most
settlements satisfy the claims made in the judicial review. While some cases that
settle as a result of bilateral negotiations could arguably result in a better outcome
for one or both parties were they mediated instead, mediation is an unlikely
option where more familiar and straightforward routes to disposal are available
to lawyers.


Mediation in judicial review would, therefore, be likely to be considered in
cases in which both parties have an interest in reaching a settlement but are
unable to do so because negotiations have become ‘stuck’. Indeed, PLP’s parallel
empirical research on mediation and judicial review2 established that mediation
can be a useful process where negotiations are impossible, diffi cult or have broken
down. As an independent neutral third party, a mediator is in a good position
to assist where parties are in general agreement about the course of action
required to resolve a dispute but need help to hammer out the detail, as well
as to reduce or obviate oppositional dynamics in more confl ictual situations. In
several of the case studies (see Appendix I), mediation enabled underlying issues
in a dispute to be teased out, and all the successful mediations resulted in
outcomes that gave claimants more than they could have achieved had they been
successful at court.


The empirical research on mediation also showed that many public law
practitioners have no detailed understanding of the mediation process and confuse
it with other forms of settlement negotiations such as roundtable meetings.
The latter are, of course, a useful means of resolving disputes, but they are
different from mediation in many respects and, therefore, appropriate in different
circumstances.

Author: Varda Bondy and Margaret Doyle

Publication date: January 31 2011