When disastrous failings occur – how could mediation help?

When disastrous failings occur – how could mediation help?

By Daniel Kershen, CEDR Foundation Co-ordinator

The recent revelations about the abuse suffered by the residents of the Winterbourne View care home in the outskirts of Bristol, allegedly administered by the custodians entrusted with their wellbeing, are a shocking reminder of the potential humans possess to completely disregard others needs and deny others their fundamental rights without even realising the damage they are inflicting.

When incidents like this, involving care providing institutions, come into the public eye it is difficult to set one’s own emotional response aside in order to try and look at the different parties involved and not to judge them whilst attempting to develop some understanding of what happened, how it happened and importantly why it happened.  One has to look at the situation and ask; what would a mediator do?

Mediation is a process whereby ideally the mediator recognises and acknowledges their own emotional responses and triggers, whilst remaining neutral and impartial in terms of judging the individuals’ actions.  This skill would be a necessary facet of anyone who was introduced into this situation, and could be a real benefit to any conflict resolution process that would take place.

A mediation in this situation would be worthwhile, if for no other reason than to clarify the needs of those people involved that were not being met, and hopefully to strategize how to best go about meeting those needs without derogating the needs of others.    It sounds from the reports that these vulnerable residents were treated with an utter lack of respect and dignity, and that in order for them to be able to look back at the process and proclaim it as a success, they would need to be re-empowered, re-establishing their own personal strength and control in the situation rather than leaving them as abused vulnerable bystanders as ‘justice’ blusters through without more than a cursory glance at the human impact on these individuals.

The Care Quality Commission (CQC) has been instructed to set up an Inquiry into the allegations.  Whilst a Public Inquiry into the situation will endeavour to find the facts of the case and examine how to ensure that this doesn’t happen again, it will most likely not seek to and probably not achieve to empower those who have been wronged, nor meet the needs of those individuals whose needs have been neglected.  CEDR has started looking at the process of Public Inquiries, and examining whether, similarly to International Arbitrations, there is room for a Mediation window to be inserted to allow for the stakeholders to best identify how to move this whole sorry incident forward.

It is important that justice is achieved and responsibility is taken for what has happened, and whilst an important part of justice is defined in the public forum, the process of justice and the decision of whether it has been achieved is something that can, in one sense, only really be decided by those involved in the process.  Undeniably there is a need for fact-finding, for assigning responsibility and for finding ways to make sure situations like this do not reoccur in the future, however often neglected, there is a need to empower those who have been abused, an achievable objective in mediation.

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