Having been one of the pioneers of commercial mediation in the UK, I am alarmed by a recent development or perhaps phenomenon. This is the intervention of the judiciary at an early stage in the mediation process leading to a serious fear on the part of some lawyers that the privilege of the process is under attack.
ADR Group, one of the two main providers of commercial mediation services in this country, is beginning to come across cases where the Judge is making an order prior to the mediation to the effect that he wants to know what goes on and, impliedly, if not expressly, if there is a lack of proper participation, then there will be an adverse costs or some other sanction. Examples of the sort of wording in these orders are:
