The Evolution of Mediation

Nowadays, mediation is placed under the heading ‘Alternative Dispute Resolution’, an apparent adjunct to the main branch of justice. Yet, if we look back to its origins, mediation appears at the beginning of every civilization (whether Chinese, ancient Greek, Islamic or any other) whenever elders sought to resolve disputes impartially and peacefully. The key feature, then and now, is that disputants should take part in and construct the resolution themselves rather than have it imposed upon them. In traditional societies, an emphasis on conciliation rather than confrontation was natural and conducive to social order.

Mediation can be found in the earliest known civilization, that of the Sumer, in Southern Mesopotamia between the Tigris and Euphrates rivers (now south-central Iraq), which emerged between the sixth and fifth millennium B.C. and developed thereafter until its decline, beginning about 2100 B.C., and eventual submission to Amorite rule. The Sumers had an organised government and society, used language and text and recorded their history. They worshipped gods and developed a varied culture, appreciating beauty in arts such as music, pottery, carvings and sculpture.

In an interesting article written on mediate.com, Jakob Vinther and Thomas Todd Reynolds recount that before a case went to court in Sumer, a mashkim (the Sumerian word that is roughly equivalent to bailiff) would examine its merits and seek to assist the parties resolve the dispute between themselves. The mashkim was required to possess many of the qualities of a modern-day mediator. He had to be unbiased, as well as disinterested and could only make proposals to the parties who would ultimately decide whether there should be a settlement.

ALSO READ: The History of Mediation and Why It Is Still in Use Today

There has also been a long history of mediation in China where under Confucian influence (6th-5th century B.C.) harmony is more important than law. Again, the mediator was required to be unbiased and disinterested and his role was to assist the parties reach a settlement rather than impose one. Even after the People’s Republic of China was formed in 1949, mediation was widely promoted as the principal form of dispute resolution, although some say that contemporary mediators are more inclined to impose a settlement. Furthermore, mediation is often carried out by the arbitrator or judge and not all are convinced that either of those roles sit well with that of a mediator.

Read more about China’s history with mediation here.

English common law, which preceded parliament, was originally a system for applying local customs, and only subsequently did parliament make laws through statutes. Mediation was an important part of medieval society with it often being preferred to court litigation. Indeed, courts would sometimes adjourn cases so that parties could seek to resolve the dispute by mediation. Certain days were set aside for mediations to take place, which became known as lovedays.

As the law developed, mediation went into decline and court litigation became ascendant. With that, legal rights, contracts and legal arguments were developed. The modern-day revival of mediation is often attributed to the civil rights campaigns of the 1960s in the United States of America, following which mediation developed to address community grievances. It spread to other parts of the world, Australia being one of the earliest countries to adopt and develop it.

In England and Wales (which has a different legal system to those in Scotland and Northern Ireland) there was a major development in the 1990s when what came to be known as the Woolf reforms (drawn up by Lord Woolf who became Lord Chief Justice in 1994) were introduced. These were aimed at three critical issues in civil justice – cost, delay and complexity. Amongst the developments were much greater case management by judges and more alternative dispute resolution, principally mediation. The proposals culminated in the new Civil Procedure Rules which became law in 1998.

Hong Kong introduced its own civil procedure reforms in 2009. Although modeled on Lord Woolf’s reforms, there were significant differences, such as the absence of a pre-action protocol in Hong Kong. Case management and mediation were also important parts of the Hong Kong reforms.

In England & Wales, matters were not allowed to rest there. Mandatory mediation was not part of the Woolf reforms but one of the latest developments is a recent announcement made this year setting out plans to make mediation up to a certain level mandatory. All disputes up to the value of GBP 10,000 will be subject to mandatory mediation to be conducted over the telephone, a nice compliment to the burst of online mediation we have seen over the last few years.

Click here for David’s profile with the Asian International Arbitration Centre.

Those who practiced in the civil courts in Hong Kong 40 years ago (when I first did so), or even 30 years ago, would be surprised to see the way practice has changed. Mediation is not a matter of technology and they would have been aware, even if somewhat dimly, of the notion of mediation. But they would be astonished, almost as much as the Sumerians, to be told of remote hearings and online mediation. Neither would have heard of the internet and those practicing 40 years ago were only just getting used to fax machines, now considered outdated technology.

The technological developments were of course prompted by the Covid epidemic and the resultant lockdowns. Necessity is the mother of invention and without those novelties, civil justice at that time would have come to a complete halt. Once tried and tested, these changes were found to be time and cost saving, thus meeting two of the aims of the Woolf reforms. Once introduced, it seems we will never go back to the ‘’old’’ ways.

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