A Flawed Approach?

Dr Ann Brady argues that it is time to look again at local judge-directed court mediation schemes. The decision to abolish the Exeter Court Mediation Scheme and replace it with a national mediation scheme was premature, she believes


Lord Justice Jackson’s Review of Civil Litigation Costs: Final Report (HMSO 2009), published on 14 January 2010 (“the Review”), endorses mediation as an important element in the legal process, providing access to justice and acknowledging that it can be a highly efficacious means of achieving a satisfactory resolution of many disputes. The Review considers that mediation should not be compulsory but it should fall to the judgment of experienced practitioners and the courts to decide whether, in the circumstances, it should be used. Parties who unreasonably refuse to mediate should be penalised in costs. A culture change is needed, however, to ensure that all litigation lawyers, judges, small businesses and the public are properly informed of the benefits of mediation. It is worth considering then whether the decision of the Ministry of Justice (“MoJ”) – which has been making efforts since 1999 to make mediation available to those who bring their disputes before the court – to abolish the six-year-old Exeter Court Mediation Scheme (see further “The Exeter Scheme” on p 28) was premature, given that it embodied many of the features which the Review wishes to see in place.


Making way for a national service

The Exeter Scheme was closed the DCA/MoJ in June 2008, to make way for a two-tier national court mediation service for cases considered suitable for mediation. Fast and multi-track cases would now be diverted to the National Mediation Helpline (“NMH”), which would, in turn, divert cases for mediation on a rota basis to over 30 nationwide commercial and voluntary mediation providers. The NMH would also handle general public enquiries about mediation. Small claims would be handed over to lay civil servants in the employ of Her Majesty’s Court Service (“HMCS”).


The MoJ small claims scheme

Having reviewed all the small claims court mediation schemes, the MoJ decided to roll out a national scheme based on the Manchester Court Mediation Scheme from May 2008 where a full-time lay mediator had been recruited following a public advertisement for the post. Although the MoJ considered the model to be the most expedient use of resources, they did not publicly advertise the new posts but instead recruited only from within the Civil Service. Thus the new small claims court mediators would form part of the administrative staff within HMCS. 

Exeter University conducted an evaluation of the MoJ small claims court scheme in 2009 (see Dr Susan Prince “Civil Procedural Rules Ten Years On” Oxford University Press 2009). It found:

  • By 2007, 25 small claims civil servant non-lawyer mediators had been selected nationally. They underwent standard 24 hour mediation training and a day and a half of bespoke training by the MoJ. The newly-trained mediators were then based in county courts in each of the HMCS court areas. This allowed one mediator for each court area within the seven regional court districts.
  • From April 2007 until September 2008 there were 7,725 small claims mediations nationally, a large proportion of which were conducted by telephone. This represents a conversion rate of 46 per cent of those cases which originally had been referred to mediation by district judges.
  • In order for the cost of the mediation to be proportionate to the amount of the claim, the majority of small claims mediations took no longer than one hour.
  • In April 2007 a total of 51 mediations were recorded nationally and 35, almost 70 per cent, were conducted face-to-face. However, one year later in March 2008, telephone mediations represented almost 90 per cent of the total, with only 36 face-to-face mediations nationally out of a total of 291 (figures provided by the MoJ in 2008). It is worth noting that at Exeter, Barnstaple and Torquay courts, two lawyer-mediators sitting back-to-back mediated up to 12 cases in a half-day session.


Telephone mediation

There is little or no research available (in the UK) on the use and development of mediation by telephone but examples are available from the United States. Telephone mediation offers some advantages when there is a significant geographic distance between the parties, where parties are worried about attending court or suffer a disability which might make it difficult for them to travel. Small claims telephone mediations in England and Wales, however, do not use high-level technology teleconferencing to join all the parties onto the same telephone line. The parties thus rely on the mediator representing her/his argument to the other side within a short time, and most of the face-to-face benefits of the mediation are lost. The research argues that the only advantages are savings in cost and time. Furthermore, whilst using lay civil service employees as mediators, rather than lawyers, can encourage a less formal and legalistic approach to mediation, the vast majority of parties in small claims cases are litigants in person, and there is a lack of micro-management, or oversight of the small claims mediator. Dr Susan Prince, who carried out the Exeter University research, argues that when a mediator is not a member of any professional organisation, which has certified, formal high-level training in values and judgment, there may be a lack of objective understanding of professional ethics. Any impartial ethical focus is instead replaced for these civil servants by an emphasis on government targets. In “The Civil Procedure Rules Ten Years On” she points out that “efficiency might prove a useful measure for HMCS but it cannot supplant objective analysis of whether unrepresented litigants-in-person are receiving a fair and just alternative to court procedure or whether they are benefiting from ‘lowest common denominator’ mediation.”

Exeter University also conducted research on the NMH in 2009. It found that over the course of a year there are approximately 10,500 calls to the NMH, but the research found that the number of referrals to mediation is dramatically lower than the number of calls received. Many are just general enquiries, calls seeking legal advice, or questions about costs. Furthermore, since the initial evaluation in 2005, the recording of data in connection with the NMH has not been sophisticated. Dr Prince’s figures indicate a low conversion rate of calls to mediations and, applying a mean, an average of approximately only 42 mediations per month are taking place nationally. The figures show that, were those cases currently referred to mediation spread across court areas, this would equate to two to three cases per area. This does not appear to demonstrate that the NMH is increasing the number of mediations in court-referred cases across England and Wales.


Who should be mediators?

Whilst it is true that the general conduct of mediation may only require generalist mediation skills, given the EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters (Directive 2008/52/EC), mediators should also be able to draft, or oversee the drafting of, agreed settlements which will become court orders (see further Dr Ann Brady “Mediation Developments in Civil and Commercial Matters” (2009) 75 Arbitration 395). It must be remembered that “mediation agreements can be creative with wide-ranging arrangements and it is critical that such agreements can be processed to a court order without problem.” (See Phillip Howell-Richardson “Europe’s Changing Mediation Landscape” (July/August 2008) The In-house Lawyer 42, 43.) Furthermore, to be cost effective court mediators should be able to read a court file quickly, understand its contents and work within a limited time frame.

The new President of the Association of District Judges, District Judge Monty Trent has suggested that district judges should turn themselves into mediators (see Counsel April 2010, p 4). However in “Mediation in Arbitration in the Pursuit of Justice” (2009) 75 Arbitration 169, Lord Woolf points out that both litigation and arbitration have the same objective; to make an imposed decision which resolves a dispute. If the mediation does not work the mediator has to revert to the role of arbitrator. In some cases this would not be practical, because there may have been discussions with one party in the absence of the other party. Furthermore, if judges take on the role of mediators then the selection process for the appointment of judges will also need to be amended to take account of mediation skills, which are different from the skills required of those who seek to become common law judges. 


Time to look again?

Surely the time is now ripe for looking once again at local judge-directed court mediation schemes and permitting a modified version of the Exeter Scheme back on the Western Circuit and other Circuits who wish to follow its model.

Dr Ann Brady is a member of Rougemont Chambers, Exeter, and is in the top tier of the Bar Council’s List of Barrister Mediators. To read the article from which this abstract is taken see (2010) 76 Arbitration 251-264.


The Exeter Scheme

The Exeter Court Mediation Scheme (“the Scheme”) was organised and administered by the Devon and Somerset Law Society (“DELS” now “DASLS”). In its first year the Scheme operated on a pro bono basis and thereafter the mediation team were paid modest fees. The Scheme covered Exeter, Barnstaple and Torquay courts and involved an administrative procedure similar to that used for allocating deputy district judges. The Scheme fitted in with the court timetable; half-days were allocated for mediation sessions several times a month and the parties met face-to-face in an informal setting with an extra room available for the mediator to see the parties separately if necessary. Local judges were in control of the process; they read the agreements reached and, where the mediation had not produced an agreement, they saw the parties on the same day to check they understood what was required of them at the forthcoming trial. Exeter University evaluated the scheme and reported an above 65 per cent success rate, both in settling cases and in disputants’ satisfaction. DELS monitored the types of cases directed by judges to mediation, success rates and individual mediator performance.
The small claims scheme operated side-by-side with an out-of-court mediation scheme for fast and multi-track cases. These cases were directed by the court on a rota basis to over 20 national commercial and voluntary mediation service providers, including the DELS small claims team. These higher level cases attracted higher fees. Exeter University’s evaluation revealed that success rates and disputants’ satisfaction varied considerably between the mediation providers (DELS and ADR, who also only used solicitor and barrister mediators, were the top two).

 

 

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