Mediation as a Substitute for Justice?

“Mediation is a complement to justice. It cannot ever be a substitute for justice.”

These are the final words of the Gordon Slynn Memorial Lecture 2010, given by Lord Neuberger of Abbotsbury, the Master of the Rolls. (The “Master of the Rolls” is the Monty-Pythonesque title given to the second most senior judge in England and Wales. He is the presiding officer of the Court of Appeal, Civil Division.)

Lord Neuberger assures his audience that he is a “keen supporter” of ADR; his worry is that the tendency to treat mediation as good and litigation as bad may be inconsistent with a commitment to equal access to justice. His argument goes like this: Equal access to the law is a fundamental component of democracy. The civil justice system is not merely a service offered in the marketplace; to regard it as such is to misinterpret its constitutional function. Mediation and ADR, in contrast, are not part of the state; they are services offered to those in dispute. To insist that disputants try mediation before litigation places an additional financial barrier to the justice system, thus compromising the principle of equal access to the courts. Disputants may accept a mediated solution that does not reflect their legal rights because they cannot afford both to mediate and to litigate.

Lord Neuberger gave this lecture on November 10, just days before the British government announced cuts to legal aid for civil cases and increased support for mediation and ADR. His remarks have to be interpreted in light of the current political situation in the U.K.

What does Lord Neuberger mean when he claims that mediation is not a “substitute” for justice? It sounds like he means that mediation is something different from and inferior to justice, the way a baker might caution one that nutrasweet or sucralose would not be adequate substitutes for sugar in the chocolate chip cookie recipe. And I fear that this is the meaning that will be assumed by those who hear this remark out of context and fail to read his entire lecture. I think it is fair to say that Lord Neuberger means that ADR is not a substitute for the justice system. He is using the word “justice” to mean something like “those decisions that are handed down formally through the legal system.” Now, while it is legitimate to use the word “justice” in such a way, this is probably not the meaning that most people have in mind when they use the word. We allow for the possibility that certain laws may be unjust and that the administration of the law itself may be unjust. Of course, Lord Neuberger recognizes this too. He even quotes Sir James Mathew’s ironic remark that, “In England, justice is open to all – like the Ritz Hotel.” Yet while Lord Neuberger acknowledges that equal access to the law is far from being a reality, I don’t think he makes enough of existing barriers – ones that have nothing to do with the proposed expansion of ADR.

No one would disagree that mediation is not a substitute for the civil justice system. Even the most enthusiastic ADR supporters recognize that some disputes are inappropriate for mediation. There are other reasons why “mediation” and “justice” should not be opposed to one another. Justice can be a quality of processes or of outcomes. Mediation and litigation are both processes of dispute resolution. As such, each can be conducted fairly (justly) or not. Litigation and the formal legal system do not have a monopoly on fairness. Similarly, the outcomes of either of these processes might be fair or not. The fact that a settlement has been voluntarily assumed or forced upon disputants does not tell us whether or not it is fair. Finally, mediation and the legal system need not be seen as in competition with one another. A mediated settlement may be formalized as a contract, a document with the power of the courts behind it.