Challenges Undermining the Use of Mediation in the Jordanian Civil Justice System: Lessons Learnt from England

Abstract

This study explores the challenges that undermine the use of mediation in Jordan, and the lessons that can be learnt from the English civil justice system. The main goals of this research are to fill in the gaps in the Jordanian literature regarding the use of mediation and, significantly, for Jordan to learn from English practices that would contribute to the uptake in the use of mediation. The study employs a qualitative approach in conducting semi-structured interviews with seventeen Jordanian judges with experience in court-based mediation, and a quantitative approach in disseminating a questionnaire to 99 lawyers to gain insight into their perspectives and experiences in engaging in the practice of court-based mediation. The findings of the empirical study identified several barriers to the use of mediation in Jordan that informed the comparative study with England, mainly the lack of a court duty or power to encourage the use of mediation, lack of statutory and professional duty upon lawyers to encourage their clients to attempt mediation before litigation, and the lack of mediation education, training and awareness among stakeholders (judges, lawyers and public). Furthermore, the study explores the concept of access to justice and mandatory mediation. The study concludes that these obstacles can, potentially, be overcome. This would involve a system based on the English experience of imposing a duty on the court to encourage the use of mediation, and vesting the court with the power to impose costs sanctions on parties for refusing to attempt mediation unreasonably. Lawyers and the parties involved would help the court to further the overriding objective of the CPR by engaging in mediation, and by increasing mediation education, training and awareness among stakeholders. Accordingly, the study presents a theoretical and practical framework to the further development of court-based mediation in Jordan.