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BRINGING JUSTICE HOME
Kate Aubrey-Johnson provides an overview of civil mediation today
In the past year, mediation was attempted in nearly 12,000 small claims and an estimated 8,000 fast and multi track cases with settlement rates of 68-90% (Small Claims Mediation Service Annual Report, HMCTS, 2011/12; CDER Fifth Mediation Audit May 2012). This is in addition to the many potential civil disputes being resolved using community mediation and mediation schemes. Members of the public and businesses, organisations and public bodies who may otherwise turn to the courts to protect and enforce their rights are discovering that mediation can offer an alternative process which is both empowering for clients and reaches creative solutions not achievable through a contested court hearing.
What is mediation?
Mediation is the most commonly used form of alternative or appropriate dispute resolution (ADR). It describes a voluntary process in which an independent and impartial third party (the mediator) facilitates discussions between parties involved in a dispute. The aim of the mediation process is to enable parties to make their own decisions about how they would wish their issues to be resolved.
In facilitative mediation, unlike many other forms of ADR, the mediator does not impose a solution or provide any expert or legal opinion on the merits of either party’s case. This does not mean the mediator plays a passive role. Mediators use a variety of techniques and strategies to help parties find pragmatic, workable settlements. As the mediation profession evolves, expertise is drawn from a broad body of knowledge ranging from principled negotiation to cognitive behavioural therapy, from non violent communication to psychotherapy and neuroscience.
Mediation has become widely used in the resolution of civil disputes, as well as family, workplace and community disputes and more widely within restorative justice.
Why mediation?
Unlike civil litigation, mediation does not try to determine the ‘truth’ or assign fault or blame. Having been through the mediation process, parties often describe it as more ‘satisfying’ than a court hearing. They benefit from having the opportunity to air their grievances, receive apologies and explanations, have misunderstandings resolved and explore collaborative solutions which avoid a ‘loss of face’ and address their real interests. Settlements can be reached because the discussions are confidential and non-judicial remedies such as future business relations, flexible timing and practical arrangements can form part of an enforceable agreement.
Mediation can be arranged far more quickly than most contested legal proceedings and for a fraction of the cost. Even taking into account one or two days’ preparation and the mediation day itself, it is quick and relatively cheap. For individuals and businesses, avoiding the damage to their reputation and restoring a relationship can have a measurable value too. Where an agreement has been reached at mediation, parties are much less likely to have to return to court to enforce the agreement. Robert Webb QC (General Counsel, Rolls Royce PLC) described the benefits of mediation at the Civil Mediation Council’s Annual Conference:
“A handshake can be easier to enforce than a judgment, that maxim works, people pay.”
There are obvious benefits to members of the public and government in reducing the numbers of cases in the civil justice system. The growth of mediation also has wider benefits, as Abigail Plenty of the Ministry of Justice explains:
“It promotes personal responsibility (rather than a blame or litigation culture) and encourages individuals to take responsibility for resolving their own disputes.”
The limits of mediation
In some cases, parties may be reluctant to mediate because they fear either that the other side is entering the process in bad faith (and are using it as a ‘fishing expedition’ to probe for trial strategy and the strengths and weaknesses in their opponent’s case) or that the other party will seek to achieve a settlement which does not reflect the merits of their case. Good mediators should be able to address these concerns and use private meetings to prevent confidential or sensitive information from being disclosed. Under the Code of Conduct of the Bar of England & Wales (8th Edition, para 708.1), “A barrister instructed in a mediation must not knowingly or recklessly mislead the mediator or any party or their representative”. Ultimately, parties are able to leave a mediation at any time and it is their decision whether to reach an agreement.
Mediation may not always be suitable, such as where a power imbalance is too great or delay may prejudice a party (for example the expiry of a limitation period). In other cases it may be cost effective to go to court, for example if summary judgment or an injunction is sought.
What happens at a mediation?
The mediation process is flexible and no two mediations are the same. Most civil mediations are arranged for a fixed period of time, according to the complexity and value of the claim. Often a day (or longer) is set aside and participants are encouraged to make themselves available beyond this as mediations can last into the evening.
Civil mediators are increasingly using pre-mediation meetings (which may be informal discussions over the telephone or more formal private meetings) to help prepare each party for the mediation, build rapport and gain the trust of the parties before the joint meeting. On the day of the mediation, there is usually an opening session during which all participants are present. The mediator explains their role, the mediation process as well as the ground rules. Each party is then invited to give an opening statement or presentation. The opening statement is a chance for each party to set out the issues which matter most to them as well as what they hope to achieve from mediation.
The mediation will then proceed in a variety of ways but most mediators make use of separate meetings with each party. This is an opportunity to discuss sensitive issues and allows the mediator to reality test issues. ‘Reality testing’ is where the mediator asks challenging or probing questions to test the strengths and weaknesses of a party’s assertion. Shuttle mediation may be used, which is where the parties remain in separate rooms and information is conveyed between them by the mediator; this gives parties the opportunity to continue to explore options whilst the mediator is speaking with the other party. The mediator is likely to bring the parties back together in a joint session at various stages.
Once there has been an exchange of information and the issues have been identified, the mediator will encourage parties to explore their interests and generate options for agreement. It is usual for the legal advisers to draft any final agreement. A powerful momentum is created by a skilled mediator who encourages parties to look beyond the purely legal issues to explore agreements which provide them with added value.
How confidential is mediation?
Before entering a mediation, parties are required to sign an Agreement to Mediate which states that the process is confidential and without prejudice. The agreement will be signed by all participants and the mediator (and in some cases the mediation provider). Confidentiality can only be breached for exceptional reasons, such as where there is a risk of serious harm, child protection issues or where mediation is used to commit or conceal a crime. A court may admit evidence of without prejudice discussions in exceptional circumstances, such as fraud or duress. In some cases, parties may wish to waive privilege and reveal without prejudice discussions but the Agreement to Mediate usually includes a clause that the parties will not call the mediator to give evidence.
Are mediation agreements enforceable?
If the mediation settlement agreement is drafted with sufficient certainty it is enforceable either as a contract or as a court order. Mediated agreements are commonly drafted as Tomlin Orders so that the agreement remains confidential, proceedings are stayed and can be reinstated to enforce any terms of the agreement. Mediation settlement agreements often require careful drafting.
Is mediation becoming mandatory?
The Government is keen to promote mediation. Their agenda is clear: it avoids unnecessary litigation and is beneficial to parties as it is quick and cheap. This means barristers and solicitors have to be ever mindful of where mediation may be the appropriate process to achieve the best possible outcome for their clients.
Increasingly, the courts are using costs sanctions to express their disapproval of parties’ unwillingness to reasonably consider mediation. In Rolf v De Guerin [2011] EWCA Civ 78, for example, the defendant ‘wanting his day in court’ was not considered an adequate reason to decline an offer of mediation. In the Court of Appeal, under a new pilot scheme, all personal injury and contract claims up to a value of £100,000 are automatically referred to mediation, unless the court directs otherwise. As of April 2013, it is proposed that small claims up to the value of £5,000 will automatically be referred to the Small Claims Mediation Service. But, as yet, there is no plan to mirror in the civil courts the pre-action requirement in private family law cases to attend mediation information and assessment meetings.
In effect, a delicate balance is being sought. Parties are increasingly required to engage with a mediator at different stages of the court process but the decision to mediate remains voluntary.
TOWARDS A COMMUNITY PEACE SERVICE
Stephen Ruttle QC introduces the concept of a Community Peace Service and suggests ways in which members of the Bar can provide valuable input.
Overall objective
The target is the establishment of a Community Peace Service (CPS) in the UK. This would comprise a network of local community peace centres (CPC’s) backed, primarily, by panels of mediators competent to mediate different types of disputes. The local CPC would be a “one-stop-shop” for the referral of any dispute affecting that community.
The social status quo
The context is important. We live in an increasingly rights focused culture where the necessary counter-balance to rights, a recognition of responsibility, seems increasingly to be lacking. Relationships, families and communities are under increasing stress. High levels of emotional intelligence are required to cope with the pressure. Conflict seems to be increasing and to be less frequently resolved. Resolution of conflict at whatever level requires a conversation; and increasingly, at all levels of our society, these conversations are not happening.
What is community mediation?
Key points
Community mediation usually shares the following features:
Extracted from Making mediation work for you: a practical handbook by Kate Aubrey-Johnson with Helen Curtis, published by Legal Action Group.
The mediation phenomenon
There has been an extraordinary surge in interest in mediation of all types and at all levels of society, gathering in momentum since the mid-1990’s. Mediation is defined, at its most basic level, as “Helping people have difficult conversations”. Mediators and mediation seem to me to be operating, from a sociological perspective, a bit like “social antibodies”.
Community mediation
Community mediation covers an enormous variety of disputes. Disputes between neighbours in tower blocks about noise or race; disputes about boundaries. Problems in the work place; victim offender mediation, schools mediation, work with gangs, homelessness issues etc.
There are currently thousands of individuals from all walks of life and from all backgrounds who would willingly commit to acting as trained voluntary community mediators within their communities.
In addition, there are now hundreds, probably thousands, of trained mediators particularly in the commercial field who are desperate to use their skills but who are unable to get started. Many of these are lawyers.
Mobilising the resource
Local Community Peace Centres (CPCs) are needed in order to train community mediators and thereafter to supervise, manage and support them. The problem is not a shortage of willing community mediators but a lack of functioning organisations to train and support them. For the last 25 years these mediators have been supported by local community mediation organisations, most of whom are registered charities and supported primarily by local authorities. The current financial climate has meant that many of these organisations are going to the wall – and taking with them many years of accumulated wisdom and profound community involvement and impact. This is a national disaster. The funding required by such organisations, in order to enable them to manage, is not large. Office space can be shared with other voluntary organisations, faith groups and the like thus minimising overheads. In order to survive, therefore, let alone to be efficient, CPCs require a funding stream, which may not meet the entire budget but will at least provide basic security.
A possible funding model
The model involves the creation of local panels (each comprising maybe 15 members) of commercially accredited mediators (many of whom will be barristers or solicitors but a significant number of whom will not). Each panel supports one (or possibly more) local peace centres. Each peace centre receives an accreditation from a central body (currently the Civil Mediation Council) that it (and its commercial panel) is competent to mediate legal disputes.
Legal disputes are mediated by these legal panels. The disputes are referred by local solicitors, local County Courts, local authorities and local businesses. There is particular scope for legal departments of local boroughs or councils to build mutually beneficially relationships with the local centre. There is no ceiling on the size or value of these disputes although most of them will probably be towards the lower end; in principle all legal disputes that affect a particular community should be available for mediation by a panel that serves that community.
The mediators are made available by the local peace centre who charges a fee to the litigant users for the service. The fee charged is based upon a tariff introduced by the Government some time ago to support the National Mediation Helpline. The tariff provides “layers” of fees depending on the sums involved. Tariff fees are currently much lower than “market” rates. A mediator who acts without charge would enable the peace centre to charge the fee and to use it for its own charitable, non-income generating, community mediation purposes and would help them to cover their annual budget.
Benefits of the model
Mediators typically talk about “win-win” solutions. I would suggest that this model scores high on the “win” index from many different perspectives.
At Governmental/national level this can be seen as a seamless example of “Big Society”; using a currently untapped resource (inactive commercial mediators) to enable peace centres to mobilise another untapped resource (those who wish to act as community mediators) in order to create an active national resource, a community peace service.
Case study - In action
A case in the youth court charged a youth with s.5 Public Order Act. He and his friends had been hanging out in front of an elderly man’s garden, sitting on his wall and generally treating his garden as part of their own area. The occupant although initially had asked them to leave had become afraid of the group, more withdrawn and less likely to leave his home. The prosecutor suggested restorative justice and both parties agreed. The young man listened to the impact his behaviour and that of his friends had had on the man. The man explained that since losing his wife he had found it difficult to live on his own and needed to get out of the house to keep himself busy and he had felt trapped in his own home as he was too afraid to face the group of boys/young men. The young man listened, as did his mother who also attended and having started the mediation with a sense of ‘entitlement’ to congregate wherever he wanted, the young man’s attitude changed. He was genuinely sorry for the distress he had caused this man. He agreed voluntarily to do some reparation work in tidying up the man’s garden. More importantly he has become the man’s protector – challenging attitudes on the estate and checking the behaviour of his friends so that the man is not disturbed. The prosecutor wanted to avoid creating a situation where the youth if found or pleaded guilty may well breach any order the court made leading to repeat court appearances. This would not bring about positive change or provide a solution for the victim. The opportunity given to both parties created a genuine benefit to both with a significant ripple effect.
Case study reproduced with the kind permission of CPS Thames and Chiltern Area and Oxfordshire YOS.
Current action
The model that I have set out above has been operated by WMS* for the last three or four years. Progress, although slow, has been steady. A number of other community mediation organisations are in the course of setting up commercial panels. There is, I believe, considerable scope for involvement by members of the Bar with this project. As accredited mediators there is potential for them to join panels and to begin to mediate disputes. As client advisers there is scope for them to recommend the use of local mediation of this nature which should be efficient, cost effective and proportionate. On a wider level I would hope that all members of the Bar could support an initiative that aims to develop a different sort of CPS – a Community Peace Service.
* Wandsworth Mediation Service is a community mediation charity set up some years ago. It operates as a typical community mediation organisation mediating neighbour disputes in the London Borough of Wandsworth (usually in high rise blocks and housing estates), training local people as mediators, and working in local schools and prisons. A significant part of its budget derives from income generated from legal mediations mediated by (the wonderful) members of its commercial panel.
A BRAVE NEW WORLD
Ruth Smallacombe and Kate Aubrey-Johnson look at the world of family mediation
“Family mediation is a process in which those involved in family breakdown, whether or not they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and reach their own agreed and informed decisions concerning some, or all, of the issues relating to separation, divorce, children, finance or property by negotiation.” (FMC Code of Practice 2010,para 1.2).
Family mediation can be used by families to address a wide range of issues from inter-generational disputes to a teenager leaving home. This article will focus on mediation used by separating and divorcing couples.
Family mediation is a voluntary process where people discuss their issues in a safe and neutral environment facilitated by an impartial mediator or co-mediator with specialist family mediation training (www.familymediationcouncil.org.uk). Mediation is confidential and privileged with the exception of financial information which is disclosed openly (under the same requirements as the court process). After an initial assessment meeting, during which mediators screen for domestic violence, power imbalances and child protection issues, the mediation process is flexible and responsive to individual circumstances. Generally there are between one and six relatively informal meetings lasting up to one and a half hours.
The outcome of mediation usually results in the mediator drafting an open summary of financial information and a privileged memorandum of understanding which reflects the couple’s agreements. If the separating couple require it, any agreement can then be drafted as a legally binding agreement by their legal advisers.
Why use family mediation?
Practice Direction 3A, Pre-Application Protocol for mediation information and assessment para 3.1, states that:
“There is a general acknowledgement that an adversarial court process is not always best-suited to the resolution of family disputes… with such disputes often best resolved through discussion and agreement, where that can be managed safely and appropriately.”
Court proceedings can be a long, expensive and damaging experience for families. Reports into the family justice system have repeatedly emphasised the benefits of diverting cases away from an adversarial court process towards a more family-centred approach.**
Family mediation draws upon a number of core principles:
All mediation about children should be child-centred and take into consideration the child’s best interests. Additionally, mediators can undertake specialist training so that they may meet directly with children so that the child’s views are heard. This can benefit children and may help their parents to make better decisions about their future.
When should couples approach a mediator?
In the majority of cases, parties are able to resolve their issues without the need to use a mediator or the courts. Statistically, 90% of separating parents, for example, do not use the courts to resolve their issues and most are able to reach settlements through bi-lateral negotiation. However, this only tells half the story. Not all of these couples are happy with the decisions they reach and there is likely to be further damage to relationships and ongoing conflict which continues to affect children. Evidence provided by the Ministry of Justice to the Justice Select Committee (6th Report, Operation of the Family Courts, 28 June 2011, para 92) suggests that a significant number, as many as 30%, lose contact with their children.
So, at what stage should couples try mediation? The simple answer is that mediation can work at any stage – pre-separation and post-separation, before court proceedings have been initiated and once they have been long established. It can be beneficial for couples to see a mediator as early as possible (provided emotions are not too raw), even before seeking legal advice, so that their positions have not
become entrenched and fixed. There are also couples who come to mediation once they have been involved in lengthy contested family proceedings and it is effective because they are able to see the benefit of reaching a resolution. Mediation is also used as a review of arrangements involving children where parents need or want a cooperative forum to discuss issues.
Mediation Information and Assessment Meetings
In April 2011, Mediation Information and Assessment Meetings (MIAMs) were introduced as a pre-condition of instituting court proceedings in private family law cases (Practice Direction 3A, Family Procedure Rules 2010, SI No 2955). This mirrored a similar requirement which had existed since 1997 for people applying for legal aid. Evidence suggested that many people applying to court were unaware of the alternatives. MIAMs are initial meetings between a mediator and each party, during which the parties learn more about mediation and other forms of dispute resolution. The mediator assesses the suitability of mediation for each person and identifies overlapping interests as well as exploring opportunities to cooperate and avoid contested court proceedings. The intention is to divert more private family law cases away from the courts.
Overall, the number of mediations appears to have increased, and in the Principal Registry, a 6% drop in private law cases has been reported since April last year. The pre-action protocol (PAP) is not, however, being universally applied by all courts and consequently is not being followed by some solicitors. The PAP requires parties issuing court proceedings to provide a form FM1 indicating they have attended a MIAM or their reason for not doing so. The PAP does not make attendance at either a MIAM or subsequent mediation meetings compulsory, and this is the reason given by Sir Nicholas Wall, President of the Family Division, at the Annual Resolution Conference in March of this year, for the inconsistent approach by different courts:
“The result, in some places, has been that the pre-action protocol is not being followed.”
A recent survey undertaken by Resolution (an organisation which promotes a non-confrontational, constructive approach to resolving family disputes) shows that there has been wide variation in the way the courts have interpreted the new requirement. Experienced solicitors who are trained as mediators and collaborative lawyers consider they are able to identify those cases requiring court intervention and so perceive MIAMs as a ‘fruitless additional hurdle’; others are concerned about the cost to clients of MIAMs (Resolution member survey, April 2012). Against this, there are also a significant number of solicitors who only refer a small minority of their clients.
Whilst there is consensus that less confrontational approaches to resolving family disputes can be beneficial to the parties involved, the challenge for Government is how best to raise awareness of the alternatives to going to court without compelling couples to mediate. It seems MIAMs are slowly increasing awareness of mediation, and with greater judicial encouragement it is likely to continue to grow.
Madeleine Reardon, a mediator and family law barrister based at 1 King’s Bench Walk, said, “My experience as both a barrister and mediator has been that judges are increasingly expecting couples to have attempted mediation before coming to court, at least in the more straightforward cases. If they have not done so, many judges will now decide the case on a summary basis, or on very limited evidence, at the first hearing. In comparison mediation has two significant advantages: one is that the parties retain control over the outcome, and the other is that there is far more time available within the mediation process.”
Impact of changes to legal aid
Once brought into force, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 will see drastic cuts to public funding and most areas of private family law taken out of scope of legal aid. The government will retain public funding for mediation and legal aid will be available for victims of domestic violence (and, after a hard fought campaign, this is given a broad definition). As the Civil Justice Council in their report Access to Justice for Litigants in Person (or Self-Represented Litigants), November 2011, have identified:
“The forthcoming reductions in legal aid will have the most serious consequences. … Among other things they will have a disproportionately adverse effect on the most vulnerable in our society.”
According to Madeleine Reardon, “it seems almost inevitable that the public funding changes will mean more litigants in person, who often struggle with the court system. They may well find that the more flexible structure of mediation suits them better, if sufficient safeguards are left in place.”
Whilst mediators had welcomed the opportunity to reach a wider and broader audience, and the recognition of mediation as being the ‘norm’ in terms of resolving family disputes, they are concerned about the impact of the unprecedented removal of public funding for vulnerable clients as well as the risk it will undermine the mediation community.
Independent legal advice may be required by individuals at various stages throughout the mediation process to assist informed decision making, ensure protection for vulnerable individuals (in particular) and is crucial before any mediation agreement is made legally binding. Power balances can also be addressed by the prospect of legal proceedings if an agreement is not reached and the scrutiny of financial disclosure. Until the changes come into force, and the precise details are worked out, it remains unclear whether previously eligible recipients of legal aid will continue to receive sufficient legal advice to retain these important safeguards.
There are many unanswered questions: What will happen if a mediator considers that mediation is unsuitable? Will the entitlement to legal aid be revived? Will mediators be under pressure from the courts to disclose mediated settlements and privileged information? If removing legal aid effectively makes mediation compulsory, what impact does that have on the voluntariness of mediation? The challenge for the mediation community is to protect professional standards and resist any attempt to undermine the core principles of mediation at this time of change and uncertainty.
CIVIL MEDIATION AND THE FUTURE
Sir Henry Brooke examines the way forward for mediation
Next year will be the fiftieth anniversary of the start of my pupillage. For 25 years I practised at the Bar. For the next 18 I was a judge. Now I have spent six years as a trebly trained mediator. To a great extent the wheel has turned full circle. When I started at the Bar, few people went to lawyers for the resolution of their disputes. There were more lawyers’ firms in Lincoln’s Inn Fields than in the Borough of Stepney. At the legal advice centre in East London which I sometimes attended, it was evident that people thought they should go to a lawyer if they had had an accident, or wanted a divorce, or wished to change their name, or to make a will, but for very little else. Of course they had disputes, but if their disputes were resolved at all they would be resolved through friends or family or with the help of third party neutrals, not by the courts.
In the intervening years I have watched the rise and fall of civil legal aid, the birth and death of the “green form scheme”, the extension of civil legal aid to cover social security and housing and second-tier advice and now the cruel cut-backs, and the over-pricing of litigation services to the extent that even wealthy corporations are looking for better and less expensive methods of dispute resolution.
I was first attracted by the possibilities of mediation during the training sessions which presaged the arrival of the Woolf reforms. Five years later I knew enough about it to say, in Dunnett v Railtrack:
“Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve... [W]hen the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live... Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant’s precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.”
Now, ten years after Dunnett v Railtrack, and with memories of nearly 200 civil mediations to draw on, I would say this again with all the emphasis that comes from direct experience. I have seen the value of an offer to return a locket containing a beloved dead sister’s hair; an offer to give back a clock which was all the claimant had ever inherited from his family; a willingness to shift the boundary lines between two properties (so that there would be less likelihood of future disputes in one area and greater convenience to the defendant in another); an agreement to alter the route of a private right of way after each side had rung up a helpful neighbour during a mediation in which they were not willing to speak to each other; an agreement to stage payments over a 12-month period so that the final payment would coincide with an anticipated future bonus; and the strength of an apology, again and again.
I witness the relief that ensues when disputants realise that their litigation is over, when claimants can get on with their lives as beneficiaries of a settlement which they regard as “good enough”. When a mediation is ended I have occasionally been kissed – which never happened to me at the Bar or on the Bench. Once a nervous male claimant, who held his girl-friend’s hand throughout the mediation, gave me a great bear hug when he realised the lawsuit was at an end and that the police had not only apologised for their rough treatment (which had resulted in broken ribs), but would also pay him compensation which he considered to be fair.
I chaired the Civil Mediation Council for four years up to February 2012. In my speech at this year’s conference I suggested that mediators from every discipline should be willing to come together and form an umbrella organisation capable of setting common standards in their training, CPD and practice requirements. When I chaired the Bar’s first professional standards committee in 1987 – when membership of the Bar Council was voluntary, the requirements of pupillage were sketchy and CPD was very firmly “tomorrow’s business” - I witnessed the reluctance of a profession to put its house in order if this meant spending money or accepting rules which elite practitioners saw as an incumbrance on their liberty. I am seeing nothing new today. It should become easier to add workplace mediation skills to one’s civil or family mediation skills without having to pay for another expensive training course which revisits many basic skills that any well-trained mediator has already mastered.
Although the value of a claim is not always a sure guide to its complexity, I tend to group mediations into “small claims”, an intermediate category between the small claims limit and £100,000, and then the higher value claims. At the expensive end of the market I still meet experienced members of the Bar who have never attended a mediation before, but on the whole the market has now learned to recognise the signs when mediation is indicated, when more traditional methods of negotiating settlements cannot be safely relied upon to meet a client’s needs.
At the “small claims” end of the market, 24 Courts Service mediators have shown what can be achieved in up to one hour through sequential telephone calls to the parties, earning an impressive settlement rate and an astronomically high satisfaction rating. Here the challenge is to develop the service far more widely – embracing up to 70,000, not 10,000, claims a year. If this development is to succeed, however, it is going to need a lot more attention to detail than the Ministry of Justice has yet shown signs of demonstrating. This is not really mediation at all: it involves giving the parties an opportunity to talk things through with a neutral third party on the telephone. If they do not want this, they put the telephone down and the “mediation” is over.
It is in the £10,000 to £100,000 category that the most interesting challenges lie. Current political upheavals show that paying parties are baulking at the cost of litigated solutions, and the reforms will make it harder for claimants to litigate at no risk to themselves. I have often successfully mediated such claims at the pre-issue stage, before costs begin escalating. Mediation advocacy is becoming a new skill in the locker of the competent advocate. Advocates who do not learn these skills are doing themselves no favours. And advocates who advise clients not to mediate without ever having attended a mediation themselves are falling below the standards their profession should require of them.
MEDIATION AND THE BAR
Bill Wood QC examines mediation and the prospects for a career within it for members of the Bar
“Do you want the good news or the bad news?” That is a phrase that mediators frequently use. (“The bad news is that the other side will only drop hands. The good news is that the sandwiches are coming.”) Parties normally want the bad news first so here goes.
The bad news: Mediation is overcrowded. People from all backgrounds and professions have trained in their hundreds, even thousands in the hope of new careers as mediators. According to 2012 biennial Audit by the Centre for Effective Dispute Resolution (CEDR), of the roughly 8000 mediations a year conducted in the civil/commercial area, some 3000 are scheme mediations conducted by the in-house mediators of provider organisations. Many of the remainder are the preserve of a relatively small group of established mediators who have managed to establish reputations ahead of the game. Parties and their advisors have been slow to try out new talent and getting work without experience and reputation is extremely tough. The recent CEDR audit shows that this oligopoly is progressively breaking down - but slowly.
Those who have come to the Bar have already decided once in their lives not to be put off by odds of that kind. F.E.Smith described the Bar (I may not have the numbers exactly) as a profession of 1000 people with work for 500 all of it being done by 250. The mediation profession feels very similar at the moment.
Now the good news: the Bar has always been extremely well represented among the ranks of the successful mediators. The current crop of mediators will have to make room in the end for new blood, indeed it is already doing so. I am confident that the Bar will be heavily represented in future generations of mediators as well.
The reasons for that are in many ways obvious:
Whether it helps to know some law as well I occasionally wonder. But if it does then we do. What you will certainly need is the ability to develop some kind of rapport with the parties in front of you, whoever they are. That in my experience has never been a formal requirement of our profession. But if you have those soft skills then do think about training as a mediator. I found the training to be enormously helpful in my work as a litigator long before I began conducting mediations. The Bar will increasingly be required to act as mediation advocates and in that capacity mediation training is, again, enormously useful.
Where to train? Button-hole mediators of your acquaintance and get their views. There are a lot of choices.
Oh ...and join the Civil Mediation Council.
The Alternative Dispute Resolution Committee of the Bar Council invites you to attend a Mediation Advocacy Training day on Saturday 8 December at the Bar Council offices in London. This event is strictly for limited numbers and will be booked on a first-come, first-served basis. You should be able to demonstrate mediation experience but do not have to be a trained mediator to participate in the day.
The Day will consist of talks on topical issues in mediation and Delegates will engage in role-play workshops and Q & A sessions will discuss how to develop mediation advocacy skills. All in all, a stimulating, fun and informative occasion.
The event will cost £85 (including VAT) and is due to carry a minimum of 5 CPD points.
(5 tickets are reserved for barristers under 7 years’ calls at £65 (including VAT) )
If you would like to register to attend this event please send an email marked “Mediation Advocacy event” and including your mediation experience to ProfessionalAffairs@BarCouncil.org.uk .
What is mediation?
Mediation is the most commonly used form of alternative or appropriate dispute resolution (ADR). It describes a voluntary process in which an independent and impartial third party (the mediator) facilitates discussions between parties involved in a dispute. The aim of the mediation process is to enable parties to make their own decisions about how they would wish their issues to be resolved.
In facilitative mediation, unlike many other forms of ADR, the mediator does not impose a solution or provide any expert or legal opinion on the merits of either party’s case. This does not mean the mediator plays a passive role. Mediators use a variety of techniques and strategies to help parties find pragmatic, workable settlements. As the mediation profession evolves, expertise is drawn from a broad body of knowledge ranging from principled negotiation to cognitive behavioural therapy, from non violent communication to psychotherapy and neuroscience.
Mediation has become widely used in the resolution of civil disputes, as well as family, workplace and community disputes and more widely within restorative justice.
Why mediation?
Unlike civil litigation, mediation does not try to determine the ‘truth’ or assign fault or blame. Having been through the mediation process, parties often describe it as more ‘satisfying’ than a court hearing. They benefit from having the opportunity to air their grievances, receive apologies and explanations, have misunderstandings resolved and explore collaborative solutions which avoid a ‘loss of face’ and address their real interests. Settlements can be reached because the discussions are confidential and non-judicial remedies such as future business relations, flexible timing and practical arrangements can form part of an enforceable agreement.
Mediation can be arranged far more quickly than most contested legal proceedings and for a fraction of the cost. Even taking into account one or two days’ preparation and the mediation day itself, it is quick and relatively cheap. For individuals and businesses, avoiding the damage to their reputation and restoring a relationship can have a measurable value too. Where an agreement has been reached at mediation, parties are much less likely to have to return to court to enforce the agreement. Robert Webb QC (General Counsel, Rolls Royce PLC) described the benefits of mediation at the Civil Mediation Council’s Annual Conference:
“A handshake can be easier to enforce than a judgment, that maxim works, people pay.”
There are obvious benefits to members of the public and government in reducing the numbers of cases in the civil justice system. The growth of mediation also has wider benefits, as Abigail Plenty of the Ministry of Justice explains:
“It promotes personal responsibility (rather than a blame or litigation culture) and encourages individuals to take responsibility for resolving their own disputes.”
The limits of mediation
In some cases, parties may be reluctant to mediate because they fear either that the other side is entering the process in bad faith (and are using it as a ‘fishing expedition’ to probe for trial strategy and the strengths and weaknesses in their opponent’s case) or that the other party will seek to achieve a settlement which does not reflect the merits of their case. Good mediators should be able to address these concerns and use private meetings to prevent confidential or sensitive information from being disclosed. Under the Code of Conduct of the Bar of England & Wales (8th Edition, para 708.1), “A barrister instructed in a mediation must not knowingly or recklessly mislead the mediator or any party or their representative”. Ultimately, parties are able to leave a mediation at any time and it is their decision whether to reach an agreement.
Mediation may not always be suitable, such as where a power imbalance is too great or delay may prejudice a party (for example the expiry of a limitation period). In other cases it may be cost effective to go to court, for example if summary judgment or an injunction is sought.
What happens at a mediation?
The mediation process is flexible and no two mediations are the same. Most civil mediations are arranged for a fixed period of time, according to the complexity and value of the claim. Often a day (or longer) is set aside and participants are encouraged to make themselves available beyond this as mediations can last into the evening.
Civil mediators are increasingly using pre-mediation meetings (which may be informal discussions over the telephone or more formal private meetings) to help prepare each party for the mediation, build rapport and gain the trust of the parties before the joint meeting. On the day of the mediation, there is usually an opening session during which all participants are present. The mediator explains their role, the mediation process as well as the ground rules. Each party is then invited to give an opening statement or presentation. The opening statement is a chance for each party to set out the issues which matter most to them as well as what they hope to achieve from mediation.
The mediation will then proceed in a variety of ways but most mediators make use of separate meetings with each party. This is an opportunity to discuss sensitive issues and allows the mediator to reality test issues. ‘Reality testing’ is where the mediator asks challenging or probing questions to test the strengths and weaknesses of a party’s assertion. Shuttle mediation may be used, which is where the parties remain in separate rooms and information is conveyed between them by the mediator; this gives parties the opportunity to continue to explore options whilst the mediator is speaking with the other party. The mediator is likely to bring the parties back together in a joint session at various stages.
Once there has been an exchange of information and the issues have been identified, the mediator will encourage parties to explore their interests and generate options for agreement. It is usual for the legal advisers to draft any final agreement. A powerful momentum is created by a skilled mediator who encourages parties to look beyond the purely legal issues to explore agreements which provide them with added value.
How confidential is mediation?
Before entering a mediation, parties are required to sign an Agreement to Mediate which states that the process is confidential and without prejudice. The agreement will be signed by all participants and the mediator (and in some cases the mediation provider). Confidentiality can only be breached for exceptional reasons, such as where there is a risk of serious harm, child protection issues or where mediation is used to commit or conceal a crime. A court may admit evidence of without prejudice discussions in exceptional circumstances, such as fraud or duress. In some cases, parties may wish to waive privilege and reveal without prejudice discussions but the Agreement to Mediate usually includes a clause that the parties will not call the mediator to give evidence.
Are mediation agreements enforceable?
If the mediation settlement agreement is drafted with sufficient certainty it is enforceable either as a contract or as a court order. Mediated agreements are commonly drafted as Tomlin Orders so that the agreement remains confidential, proceedings are stayed and can be reinstated to enforce any terms of the agreement. Mediation settlement agreements often require careful drafting.
Is mediation becoming mandatory?
The Government is keen to promote mediation. Their agenda is clear: it avoids unnecessary litigation and is beneficial to parties as it is quick and cheap. This means barristers and solicitors have to be ever mindful of where mediation may be the appropriate process to achieve the best possible outcome for their clients.
Increasingly, the courts are using costs sanctions to express their disapproval of parties’ unwillingness to reasonably consider mediation. In Rolf v De Guerin [2011] EWCA Civ 78, for example, the defendant ‘wanting his day in court’ was not considered an adequate reason to decline an offer of mediation. In the Court of Appeal, under a new pilot scheme, all personal injury and contract claims up to a value of £100,000 are automatically referred to mediation, unless the court directs otherwise. As of April 2013, it is proposed that small claims up to the value of £5,000 will automatically be referred to the Small Claims Mediation Service. But, as yet, there is no plan to mirror in the civil courts the pre-action requirement in private family law cases to attend mediation information and assessment meetings.
In effect, a delicate balance is being sought. Parties are increasingly required to engage with a mediator at different stages of the court process but the decision to mediate remains voluntary.
TOWARDS A COMMUNITY PEACE SERVICE
Stephen Ruttle QC introduces the concept of a Community Peace Service and suggests ways in which members of the Bar can provide valuable input.
Overall objective
The target is the establishment of a Community Peace Service (CPS) in the UK. This would comprise a network of local community peace centres (CPC’s) backed, primarily, by panels of mediators competent to mediate different types of disputes. The local CPC would be a “one-stop-shop” for the referral of any dispute affecting that community.
The social status quo
The context is important. We live in an increasingly rights focused culture where the necessary counter-balance to rights, a recognition of responsibility, seems increasingly to be lacking. Relationships, families and communities are under increasing stress. High levels of emotional intelligence are required to cope with the pressure. Conflict seems to be increasing and to be less frequently resolved. Resolution of conflict at whatever level requires a conversation; and increasingly, at all levels of our society, these conversations are not happening.
What is community mediation?
Key points
Community mediation usually shares the following features:
Extracted from Making mediation work for you: a practical handbook by Kate Aubrey-Johnson with Helen Curtis, published by Legal Action Group.
The mediation phenomenon
There has been an extraordinary surge in interest in mediation of all types and at all levels of society, gathering in momentum since the mid-1990’s. Mediation is defined, at its most basic level, as “Helping people have difficult conversations”. Mediators and mediation seem to me to be operating, from a sociological perspective, a bit like “social antibodies”.
Community mediation
Community mediation covers an enormous variety of disputes. Disputes between neighbours in tower blocks about noise or race; disputes about boundaries. Problems in the work place; victim offender mediation, schools mediation, work with gangs, homelessness issues etc.
There are currently thousands of individuals from all walks of life and from all backgrounds who would willingly commit to acting as trained voluntary community mediators within their communities.
In addition, there are now hundreds, probably thousands, of trained mediators particularly in the commercial field who are desperate to use their skills but who are unable to get started. Many of these are lawyers.
Mobilising the resource
Local Community Peace Centres (CPCs) are needed in order to train community mediators and thereafter to supervise, manage and support them. The problem is not a shortage of willing community mediators but a lack of functioning organisations to train and support them. For the last 25 years these mediators have been supported by local community mediation organisations, most of whom are registered charities and supported primarily by local authorities. The current financial climate has meant that many of these organisations are going to the wall – and taking with them many years of accumulated wisdom and profound community involvement and impact. This is a national disaster. The funding required by such organisations, in order to enable them to manage, is not large. Office space can be shared with other voluntary organisations, faith groups and the like thus minimising overheads. In order to survive, therefore, let alone to be efficient, CPCs require a funding stream, which may not meet the entire budget but will at least provide basic security.
A possible funding model
The model involves the creation of local panels (each comprising maybe 15 members) of commercially accredited mediators (many of whom will be barristers or solicitors but a significant number of whom will not). Each panel supports one (or possibly more) local peace centres. Each peace centre receives an accreditation from a central body (currently the Civil Mediation Council) that it (and its commercial panel) is competent to mediate legal disputes.
Legal disputes are mediated by these legal panels. The disputes are referred by local solicitors, local County Courts, local authorities and local businesses. There is particular scope for legal departments of local boroughs or councils to build mutually beneficially relationships with the local centre. There is no ceiling on the size or value of these disputes although most of them will probably be towards the lower end; in principle all legal disputes that affect a particular community should be available for mediation by a panel that serves that community.
The mediators are made available by the local peace centre who charges a fee to the litigant users for the service. The fee charged is based upon a tariff introduced by the Government some time ago to support the National Mediation Helpline. The tariff provides “layers” of fees depending on the sums involved. Tariff fees are currently much lower than “market” rates. A mediator who acts without charge would enable the peace centre to charge the fee and to use it for its own charitable, non-income generating, community mediation purposes and would help them to cover their annual budget.
Benefits of the model
Mediators typically talk about “win-win” solutions. I would suggest that this model scores high on the “win” index from many different perspectives.
At Governmental/national level this can be seen as a seamless example of “Big Society”; using a currently untapped resource (inactive commercial mediators) to enable peace centres to mobilise another untapped resource (those who wish to act as community mediators) in order to create an active national resource, a community peace service.
Case study - In action
A case in the youth court charged a youth with s.5 Public Order Act. He and his friends had been hanging out in front of an elderly man’s garden, sitting on his wall and generally treating his garden as part of their own area. The occupant although initially had asked them to leave had become afraid of the group, more withdrawn and less likely to leave his home. The prosecutor suggested restorative justice and both parties agreed. The young man listened to the impact his behaviour and that of his friends had had on the man. The man explained that since losing his wife he had found it difficult to live on his own and needed to get out of the house to keep himself busy and he had felt trapped in his own home as he was too afraid to face the group of boys/young men. The young man listened, as did his mother who also attended and having started the mediation with a sense of ‘entitlement’ to congregate wherever he wanted, the young man’s attitude changed. He was genuinely sorry for the distress he had caused this man. He agreed voluntarily to do some reparation work in tidying up the man’s garden. More importantly he has become the man’s protector – challenging attitudes on the estate and checking the behaviour of his friends so that the man is not disturbed. The prosecutor wanted to avoid creating a situation where the youth if found or pleaded guilty may well breach any order the court made leading to repeat court appearances. This would not bring about positive change or provide a solution for the victim. The opportunity given to both parties created a genuine benefit to both with a significant ripple effect.
Case study reproduced with the kind permission of CPS Thames and Chiltern Area and Oxfordshire YOS.
Current action
The model that I have set out above has been operated by WMS* for the last three or four years. Progress, although slow, has been steady. A number of other community mediation organisations are in the course of setting up commercial panels. There is, I believe, considerable scope for involvement by members of the Bar with this project. As accredited mediators there is potential for them to join panels and to begin to mediate disputes. As client advisers there is scope for them to recommend the use of local mediation of this nature which should be efficient, cost effective and proportionate. On a wider level I would hope that all members of the Bar could support an initiative that aims to develop a different sort of CPS – a Community Peace Service.
* Wandsworth Mediation Service is a community mediation charity set up some years ago. It operates as a typical community mediation organisation mediating neighbour disputes in the London Borough of Wandsworth (usually in high rise blocks and housing estates), training local people as mediators, and working in local schools and prisons. A significant part of its budget derives from income generated from legal mediations mediated by (the wonderful) members of its commercial panel.
A BRAVE NEW WORLD
Ruth Smallacombe and Kate Aubrey-Johnson look at the world of family mediation
“Family mediation is a process in which those involved in family breakdown, whether or not they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and reach their own agreed and informed decisions concerning some, or all, of the issues relating to separation, divorce, children, finance or property by negotiation.” (FMC Code of Practice 2010,para 1.2).
Family mediation can be used by families to address a wide range of issues from inter-generational disputes to a teenager leaving home. This article will focus on mediation used by separating and divorcing couples.
Family mediation is a voluntary process where people discuss their issues in a safe and neutral environment facilitated by an impartial mediator or co-mediator with specialist family mediation training (www.familymediationcouncil.org.uk). Mediation is confidential and privileged with the exception of financial information which is disclosed openly (under the same requirements as the court process). After an initial assessment meeting, during which mediators screen for domestic violence, power imbalances and child protection issues, the mediation process is flexible and responsive to individual circumstances. Generally there are between one and six relatively informal meetings lasting up to one and a half hours.
The outcome of mediation usually results in the mediator drafting an open summary of financial information and a privileged memorandum of understanding which reflects the couple’s agreements. If the separating couple require it, any agreement can then be drafted as a legally binding agreement by their legal advisers.
Why use family mediation?
Practice Direction 3A, Pre-Application Protocol for mediation information and assessment para 3.1, states that:
“There is a general acknowledgement that an adversarial court process is not always best-suited to the resolution of family disputes… with such disputes often best resolved through discussion and agreement, where that can be managed safely and appropriately.”
Court proceedings can be a long, expensive and damaging experience for families. Reports into the family justice system have repeatedly emphasised the benefits of diverting cases away from an adversarial court process towards a more family-centred approach.**
Family mediation draws upon a number of core principles:
All mediation about children should be child-centred and take into consideration the child’s best interests. Additionally, mediators can undertake specialist training so that they may meet directly with children so that the child’s views are heard. This can benefit children and may help their parents to make better decisions about their future.
When should couples approach a mediator?
In the majority of cases, parties are able to resolve their issues without the need to use a mediator or the courts. Statistically, 90% of separating parents, for example, do not use the courts to resolve their issues and most are able to reach settlements through bi-lateral negotiation. However, this only tells half the story. Not all of these couples are happy with the decisions they reach and there is likely to be further damage to relationships and ongoing conflict which continues to affect children. Evidence provided by the Ministry of Justice to the Justice Select Committee (6th Report, Operation of the Family Courts, 28 June 2011, para 92) suggests that a significant number, as many as 30%, lose contact with their children.
So, at what stage should couples try mediation? The simple answer is that mediation can work at any stage – pre-separation and post-separation, before court proceedings have been initiated and once they have been long established. It can be beneficial for couples to see a mediator as early as possible (provided emotions are not too raw), even before seeking legal advice, so that their positions have not
become entrenched and fixed. There are also couples who come to mediation once they have been involved in lengthy contested family proceedings and it is effective because they are able to see the benefit of reaching a resolution. Mediation is also used as a review of arrangements involving children where parents need or want a cooperative forum to discuss issues.
Mediation Information and Assessment Meetings
In April 2011, Mediation Information and Assessment Meetings (MIAMs) were introduced as a pre-condition of instituting court proceedings in private family law cases (Practice Direction 3A, Family Procedure Rules 2010, SI No 2955). This mirrored a similar requirement which had existed since 1997 for people applying for legal aid. Evidence suggested that many people applying to court were unaware of the alternatives. MIAMs are initial meetings between a mediator and each party, during which the parties learn more about mediation and other forms of dispute resolution. The mediator assesses the suitability of mediation for each person and identifies overlapping interests as well as exploring opportunities to cooperate and avoid contested court proceedings. The intention is to divert more private family law cases away from the courts.
Overall, the number of mediations appears to have increased, and in the Principal Registry, a 6% drop in private law cases has been reported since April last year. The pre-action protocol (PAP) is not, however, being universally applied by all courts and consequently is not being followed by some solicitors. The PAP requires parties issuing court proceedings to provide a form FM1 indicating they have attended a MIAM or their reason for not doing so. The PAP does not make attendance at either a MIAM or subsequent mediation meetings compulsory, and this is the reason given by Sir Nicholas Wall, President of the Family Division, at the Annual Resolution Conference in March of this year, for the inconsistent approach by different courts:
“The result, in some places, has been that the pre-action protocol is not being followed.”
A recent survey undertaken by Resolution (an organisation which promotes a non-confrontational, constructive approach to resolving family disputes) shows that there has been wide variation in the way the courts have interpreted the new requirement. Experienced solicitors who are trained as mediators and collaborative lawyers consider they are able to identify those cases requiring court intervention and so perceive MIAMs as a ‘fruitless additional hurdle’; others are concerned about the cost to clients of MIAMs (Resolution member survey, April 2012). Against this, there are also a significant number of solicitors who only refer a small minority of their clients.
Whilst there is consensus that less confrontational approaches to resolving family disputes can be beneficial to the parties involved, the challenge for Government is how best to raise awareness of the alternatives to going to court without compelling couples to mediate. It seems MIAMs are slowly increasing awareness of mediation, and with greater judicial encouragement it is likely to continue to grow.
Madeleine Reardon, a mediator and family law barrister based at 1 King’s Bench Walk, said, “My experience as both a barrister and mediator has been that judges are increasingly expecting couples to have attempted mediation before coming to court, at least in the more straightforward cases. If they have not done so, many judges will now decide the case on a summary basis, or on very limited evidence, at the first hearing. In comparison mediation has two significant advantages: one is that the parties retain control over the outcome, and the other is that there is far more time available within the mediation process.”
Impact of changes to legal aid
Once brought into force, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPOA) 2012 will see drastic cuts to public funding and most areas of private family law taken out of scope of legal aid. The government will retain public funding for mediation and legal aid will be available for victims of domestic violence (and, after a hard fought campaign, this is given a broad definition). As the Civil Justice Council in their report Access to Justice for Litigants in Person (or Self-Represented Litigants), November 2011, have identified:
“The forthcoming reductions in legal aid will have the most serious consequences. … Among other things they will have a disproportionately adverse effect on the most vulnerable in our society.”
According to Madeleine Reardon, “it seems almost inevitable that the public funding changes will mean more litigants in person, who often struggle with the court system. They may well find that the more flexible structure of mediation suits them better, if sufficient safeguards are left in place.”
Whilst mediators had welcomed the opportunity to reach a wider and broader audience, and the recognition of mediation as being the ‘norm’ in terms of resolving family disputes, they are concerned about the impact of the unprecedented removal of public funding for vulnerable clients as well as the risk it will undermine the mediation community.
Independent legal advice may be required by individuals at various stages throughout the mediation process to assist informed decision making, ensure protection for vulnerable individuals (in particular) and is crucial before any mediation agreement is made legally binding. Power balances can also be addressed by the prospect of legal proceedings if an agreement is not reached and the scrutiny of financial disclosure. Until the changes come into force, and the precise details are worked out, it remains unclear whether previously eligible recipients of legal aid will continue to receive sufficient legal advice to retain these important safeguards.
There are many unanswered questions: What will happen if a mediator considers that mediation is unsuitable? Will the entitlement to legal aid be revived? Will mediators be under pressure from the courts to disclose mediated settlements and privileged information? If removing legal aid effectively makes mediation compulsory, what impact does that have on the voluntariness of mediation? The challenge for the mediation community is to protect professional standards and resist any attempt to undermine the core principles of mediation at this time of change and uncertainty.
CIVIL MEDIATION AND THE FUTURE
Sir Henry Brooke examines the way forward for mediation
Next year will be the fiftieth anniversary of the start of my pupillage. For 25 years I practised at the Bar. For the next 18 I was a judge. Now I have spent six years as a trebly trained mediator. To a great extent the wheel has turned full circle. When I started at the Bar, few people went to lawyers for the resolution of their disputes. There were more lawyers’ firms in Lincoln’s Inn Fields than in the Borough of Stepney. At the legal advice centre in East London which I sometimes attended, it was evident that people thought they should go to a lawyer if they had had an accident, or wanted a divorce, or wished to change their name, or to make a will, but for very little else. Of course they had disputes, but if their disputes were resolved at all they would be resolved through friends or family or with the help of third party neutrals, not by the courts.
In the intervening years I have watched the rise and fall of civil legal aid, the birth and death of the “green form scheme”, the extension of civil legal aid to cover social security and housing and second-tier advice and now the cruel cut-backs, and the over-pricing of litigation services to the extent that even wealthy corporations are looking for better and less expensive methods of dispute resolution.
I was first attracted by the possibilities of mediation during the training sessions which presaged the arrival of the Woolf reforms. Five years later I knew enough about it to say, in Dunnett v Railtrack:
“Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve... [W]hen the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live... Occasions are known to the court in claims against the police, which can give rise to as much passion as a claim of this kind where a claimant’s precious horses are killed on a railway line, by which an apology from a very senior police officer is all that the claimant is really seeking and the money side of the matter falls away.”
Now, ten years after Dunnett v Railtrack, and with memories of nearly 200 civil mediations to draw on, I would say this again with all the emphasis that comes from direct experience. I have seen the value of an offer to return a locket containing a beloved dead sister’s hair; an offer to give back a clock which was all the claimant had ever inherited from his family; a willingness to shift the boundary lines between two properties (so that there would be less likelihood of future disputes in one area and greater convenience to the defendant in another); an agreement to alter the route of a private right of way after each side had rung up a helpful neighbour during a mediation in which they were not willing to speak to each other; an agreement to stage payments over a 12-month period so that the final payment would coincide with an anticipated future bonus; and the strength of an apology, again and again.
I witness the relief that ensues when disputants realise that their litigation is over, when claimants can get on with their lives as beneficiaries of a settlement which they regard as “good enough”. When a mediation is ended I have occasionally been kissed – which never happened to me at the Bar or on the Bench. Once a nervous male claimant, who held his girl-friend’s hand throughout the mediation, gave me a great bear hug when he realised the lawsuit was at an end and that the police had not only apologised for their rough treatment (which had resulted in broken ribs), but would also pay him compensation which he considered to be fair.
I chaired the Civil Mediation Council for four years up to February 2012. In my speech at this year’s conference I suggested that mediators from every discipline should be willing to come together and form an umbrella organisation capable of setting common standards in their training, CPD and practice requirements. When I chaired the Bar’s first professional standards committee in 1987 – when membership of the Bar Council was voluntary, the requirements of pupillage were sketchy and CPD was very firmly “tomorrow’s business” - I witnessed the reluctance of a profession to put its house in order if this meant spending money or accepting rules which elite practitioners saw as an incumbrance on their liberty. I am seeing nothing new today. It should become easier to add workplace mediation skills to one’s civil or family mediation skills without having to pay for another expensive training course which revisits many basic skills that any well-trained mediator has already mastered.
Although the value of a claim is not always a sure guide to its complexity, I tend to group mediations into “small claims”, an intermediate category between the small claims limit and £100,000, and then the higher value claims. At the expensive end of the market I still meet experienced members of the Bar who have never attended a mediation before, but on the whole the market has now learned to recognise the signs when mediation is indicated, when more traditional methods of negotiating settlements cannot be safely relied upon to meet a client’s needs.
At the “small claims” end of the market, 24 Courts Service mediators have shown what can be achieved in up to one hour through sequential telephone calls to the parties, earning an impressive settlement rate and an astronomically high satisfaction rating. Here the challenge is to develop the service far more widely – embracing up to 70,000, not 10,000, claims a year. If this development is to succeed, however, it is going to need a lot more attention to detail than the Ministry of Justice has yet shown signs of demonstrating. This is not really mediation at all: it involves giving the parties an opportunity to talk things through with a neutral third party on the telephone. If they do not want this, they put the telephone down and the “mediation” is over.
It is in the £10,000 to £100,000 category that the most interesting challenges lie. Current political upheavals show that paying parties are baulking at the cost of litigated solutions, and the reforms will make it harder for claimants to litigate at no risk to themselves. I have often successfully mediated such claims at the pre-issue stage, before costs begin escalating. Mediation advocacy is becoming a new skill in the locker of the competent advocate. Advocates who do not learn these skills are doing themselves no favours. And advocates who advise clients not to mediate without ever having attended a mediation themselves are falling below the standards their profession should require of them.
MEDIATION AND THE BAR
Bill Wood QC examines mediation and the prospects for a career within it for members of the Bar
“Do you want the good news or the bad news?” That is a phrase that mediators frequently use. (“The bad news is that the other side will only drop hands. The good news is that the sandwiches are coming.”) Parties normally want the bad news first so here goes.
The bad news: Mediation is overcrowded. People from all backgrounds and professions have trained in their hundreds, even thousands in the hope of new careers as mediators. According to 2012 biennial Audit by the Centre for Effective Dispute Resolution (CEDR), of the roughly 8000 mediations a year conducted in the civil/commercial area, some 3000 are scheme mediations conducted by the in-house mediators of provider organisations. Many of the remainder are the preserve of a relatively small group of established mediators who have managed to establish reputations ahead of the game. Parties and their advisors have been slow to try out new talent and getting work without experience and reputation is extremely tough. The recent CEDR audit shows that this oligopoly is progressively breaking down - but slowly.
Those who have come to the Bar have already decided once in their lives not to be put off by odds of that kind. F.E.Smith described the Bar (I may not have the numbers exactly) as a profession of 1000 people with work for 500 all of it being done by 250. The mediation profession feels very similar at the moment.
Now the good news: the Bar has always been extremely well represented among the ranks of the successful mediators. The current crop of mediators will have to make room in the end for new blood, indeed it is already doing so. I am confident that the Bar will be heavily represented in future generations of mediators as well.
The reasons for that are in many ways obvious:
Whether it helps to know some law as well I occasionally wonder. But if it does then we do. What you will certainly need is the ability to develop some kind of rapport with the parties in front of you, whoever they are. That in my experience has never been a formal requirement of our profession. But if you have those soft skills then do think about training as a mediator. I found the training to be enormously helpful in my work as a litigator long before I began conducting mediations. The Bar will increasingly be required to act as mediation advocates and in that capacity mediation training is, again, enormously useful.
Where to train? Button-hole mediators of your acquaintance and get their views. There are a lot of choices.
Oh ...and join the Civil Mediation Council.
The Alternative Dispute Resolution Committee of the Bar Council invites you to attend a Mediation Advocacy Training day on Saturday 8 December at the Bar Council offices in London. This event is strictly for limited numbers and will be booked on a first-come, first-served basis. You should be able to demonstrate mediation experience but do not have to be a trained mediator to participate in the day.
The Day will consist of talks on topical issues in mediation and Delegates will engage in role-play workshops and Q & A sessions will discuss how to develop mediation advocacy skills. All in all, a stimulating, fun and informative occasion.
The event will cost £85 (including VAT) and is due to carry a minimum of 5 CPD points.
(5 tickets are reserved for barristers under 7 years’ calls at £65 (including VAT) )
If you would like to register to attend this event please send an email marked “Mediation Advocacy event” and including your mediation experience to ProfessionalAffairs@BarCouncil.org.uk .
BRINGING JUSTICE HOME
Kate Aubrey-Johnson provides an overview of civil mediation today
In the past year, mediation was attempted in nearly 12,000 small claims and an estimated 8,000 fast and multi track cases with settlement rates of 68-90% (Small Claims Mediation Service Annual Report, HMCTS, 2011/12; CDER Fifth Mediation Audit May 2012). This is in addition to the many potential civil disputes being resolved using community mediation and mediation schemes. Members of the public and businesses, organisations and public bodies who may otherwise turn to the courts to protect and enforce their rights are discovering that mediation can offer an alternative process which is both empowering for clients and reaches creative solutions not achievable through a contested court hearing.
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
Giovanni D’Avola explores the issue of over-citation of unreported cases and the ‘added value’ elements of a law report
Louise Crush explores the key points and opportunities for tax efficiency
Westgate Wealth Management Ltd is a Partner Practice of FTSE 100 company St. James’s Place – one of the top UK Wealth Management firms. We offer a holistic service of distinct quality, integrity, and excellence with the aim to build a professional and valuable relationship with our clients, helping to provide them with security now, prosperity in the future and the highest standard of service in all of our dealings.
Is now the time to review your financial position, having reached a career milestone? asks Louise Crush
If you were to host a dinner party with 10 guests, and you asked them to explain what financial planning is and how it differs to financial advice, you’d receive 10 different answers. The variety of answers highlights the ongoing need to clarify and promote the value of financial planning.
Most of us like to think we would risk our career in order to meet our ethical obligations, so why have so many lawyers failed to hold the line? asks Flora Page
If your current practice environment is bringing you down, seek a new one. However daunting the change, it will be worth it, says Anon Barrister
Creating advocacy opportunities for juniors is now the expectation but not always easy to put into effect. Tom Mitcheson KC distils developing best practice from the Patents Court initiative already bearing fruit
Sam Townend KC explains the Bar Council’s efforts towards ensuring a bright future for the profession
The long-running fee-paid judicial pensions saga continues. The current cut-off date for giving notice of election to join FPJPS is 31 March 2024, and that date now gives rise to a serious problem, warns HH John Platt
