Articles

2 Feb 2010

Mediation in the UK today, by Sir Henry Brooke

'An authoritative review of the UK mediation scene today from the CMC's perspective'
by Sir Henry Brooke, Chairman of the Civil Mediation Council, from his CMC Academic Seminar, 20 January 2010

Introduction

I chose my title carefully.  In theory it includes family mediation about which I know very little.  It includes neighbourhood and community and workplace mediation about which I don’t know very much.   It includes mediation in Scotland and Northern Ireland, where my knowledge is also fairly scanty.  And of course it includes civil and commercial mediation about which I now know a lot.

I chose the title because it is becoming more and more obvious that there are features of all these different types and arrangements for mediation which we could usefully learn from in the CMC.  It is also the case that a number of mediation providers are now providing, or seeking to provide, a one-stop service, including mediators trained in the different disciplines, and in my view the time has come to look at the whole of the mediation scene in the round.

Family mediation

First, then, family mediation.  This is now very firmly established.  A breakthrough came in 1997 when the Family Law Act 1996 came into force, and public funding through the Legal Services Commission (LSC) became available.  Quite different mediation techniques are used by family mediators.  The parties usually remain in the same room as the mediator throughout.  There is nearly always quite a high degree of emotion.  The mediation is usually spread over a number of sessions (typically between 3 and 5), each lasting about ninety minutes, with a gap of 4-5 weeks between sessions. Because a lot of taxpayer funding is involved there is much more regulatory control.  Family mediators must attain “recognition” to be permitted to work with publicly funded parties by submitting a portfolio of work for competence assessment, usually after a minimum of about 40 hours of practice.

Far fewer independent organisations are involved than on the civil side.  There is National Family Mediation with 47 affiliated services in England and Wales.  These are not-for-profit charities which all have contracts with the LSC.   Then there is the Family Mediation Association; Resolution (the current name for the Solicitor’s Family Law Association); the ADR Group; a Law Society panel of family mediators; and finally the College of Mediators.  This used to be called the UK College of Family Mediators.  Its change of name came with the extension of its activities to setting standards for community and workplace mediators as well.

There have been schisms in the family mediation community in the past.  Since the end of 2007 there has been a new Family Mediation Council (FMC).  This is very unlike the CMC.  Its members are the six large organisations I have mentioned.   There are no individual members.  One of its tasks is to prescribe and maintain a set of professional practice and training standards common to all family mediators.   Every member of the six membership organisations must adhere to these standards, and the organisations themselves must regulate and monitor the performance of their members.

Family mediators are only permitted to offer LSC-funded work through the medium of a mediation service contracted to the LSC which possesses the LSC’s Quality Mark.  This quality mark prescribes that every mediator who offers publicly funded mediation must belong to a member of the FMC.

This does not apply to privately funded family mediation, but the FMC is keen that there should be a similar requirement across the board, so that all family mediators are subject to the same level of regulation.

I will be returning to the College of Mediators’ standards for mediation later on.

All the family mediation organisations except Resolution and the Law Society include in their membership not only lawyers but also counsellors, social workers, and health and education professionals.  There have been quite serious tensions within the family mediation community over the years, but it is hoped that these are now firmly in the past.

Community and neighbourhood mediation

Next, community and neighbourhood mediators.    I must be very cautious about what I say here, because I still do not know very much about this scene.  At present they do not fall within the CMC’s terms of reference.  Last year we issued a Questionnaire to which we received responses from 500 people or organisations.  134 of them were involved wholly or partly in community mediation.  What was striking was that although nearly three quarters of our 500 respondents did not come from that world, 37% of them said they thought the CMC ought to have a role in supporting and promoting it.  We are now considering what, if anything, we should do about these responses.  We would not want to go where we are not wanted, and nothing will be done in a hurry.

A company called Mediation UK used to act as a national umbrella body for 120 different community mediation providers.  It had a very useful website which people could use if they wanted to identify a local organisation.  But it went into liquidation three years ago, and it hasn’t been replaced.  One of its legacies is a Directory of UK Mediators, which provides a searchable database for some of these providers.  Last year the College of Mediators started setting standards for community mediators, and it now has 100 community mediator members who have satisfied it that they meet those standards.  Over a year ago the LSC discontinued issuing a Quality Mark to community mediators.

There are many excellent community mediation providers.  There is masses of innovation going on.  There are experiments with peer mediation in schools; with restorative justice in liaison with local criminal justice organisations; with mediation within and between ethnic communities; and even with gangland mediation.  Community mediators are often volunteers, and they usually provide a free service.  Neighbour disputes include disputes about noise or boundaries or party walls.  If these disputes cannot be settled at grassroots level, they can escalate into litigation.  In vulnerable and disadvantaged communities mediators often need to have a greater understanding of the social context than rank and file civil mediators, particularly where there are diversity issues or disputes involving community engagement.

The CMC is perceived by many community mediators to be a lawyer-dominated organisation.  In the community mediation world, too, there are tensions between lawyers and non-lawyers.  One respondent counselled us to tread very carefully within the “fragmented community mediation area.”

What are the challenges here?  Some of these organisations feel rather isolated.  They often experience serious funding problems which make it difficult to recruit and retain staff.   They very often cannot rely on a regular funding stream from year to year.  Some of them receive local authority funding to a greater or lesser extent.  Some have service level agreements to provide mediation services to different organisations in their area, such as education authorities or health authorities.  Wandsworth Mediation is a service which receives no local authority support, but they have civil and commercial mediators on their panel who donate their fees to subsidise other parts of their mediation service, which includes community and neighbourhood provision.

These services often cannot afford to buy in good quality mediation trainers. They do the training themselves.  This is often of high quality, sometimes less so.  In community mediation co-mediators are very often used, who learn from each other.  There are often very good arrangements for mentoring and feedback and supervision, with a substantial on-going training programme. 

Pro bono mediation and Law Works

Alongside the community mediation world, there is Law Works, an independent charity operating throughout England and Wales. This is an excellent and grossly under-used resource.  It has over 150 mediators on its books.  They are all trained as civil and commercial mediators, and they are willing to provide mediation services pro bono for people who cannot afford to pay for a mediator, but their willingness isn’t properly exploited.   Their organiser tells me that whenever she advertises an available pro bono mediation on their bulletin board, it is usually taken up in two minutes.

Workplace mediation

Next, there is workplace mediation.  I distinguish this from employment mediation, where mediators come in when relations have broken down completely and there are tribunal proceedings afoot.  Workplace mediators are called in to help with conflict resolution in the workplace before matters escalate.  Again there can be a lawyer/ non-lawyer tension here.  The CMC became involved in this world for the first time in 2008.  People thought that there would be a greater need for private workplace mediators when the Employment Act 2008 became law in April 2009, and workplace mediators were told that there would have to be some form of registration system if they were to receive referrals from ACAS, so as to distinguish between well-regulated organisations and cowboys.  We were asked if we could help them to establish registration arrangements, and we gladly agreed to do so.

Our register is based on self-certification at the moment.  So long as applicants satisfy our registrar that they meet our registration criteria and they pay our registration fee, they will be placed on the register.  Registered providers can be of any size, at present from two members upwards.  There are now 37 registered workplace mediation providers.  27 of them are also accredited civil/commercial providers.

Although we are working quite closely with the department which is now called BIS and with ACAS, in fact there has not yet been the take-up of workplace mediation which some people had hoped for.  In fact, since April 2009 there have been more references to Employment Tribunals, not fewer.  The recession may have something to do with this.  We have a workplace committee.  It is chaired by one of our Board members who comes from this world, and it contains most of the leading players in this field.  The CMC’s Board seems to have developed a very good way of working with this committee, to mutual advantage.  At present consultation is going on over the contents of a three-year business plan for expanding the market.  In March one of our regular forums will be devoted to workplace mediation, and I hope that a Minister will be coming along to talk to it.  In another development, workplace mediation trainers are now marketing conversion courses for trained civil/commercial mediators.  I am sure we will have to revisit the entry requirements for workplace registration sooner or later.

Northern Ireland

Next, I move to Northern Ireland.  Understandably community mediation has played a very important part here in recent years.  A workshop convened in 1985 about the use of mediation skills in conflict led to the creation of an umbrella organisation which changed its name a number of times.  It is now called Mediation Northern Ireland. One of its core activities is the delivery of quality mediation and training services, and it has attracted a good deal of financial support from public authorities and others, including the devolved Government.

Civil and commercial mediation is much less far advanced in Ulster. The Northern Ireland courts still operate under largely unreformed procedural rules, and there is not the same emphasis in their rules on the need to explore the possibilities of different techniques for settlement at every stage of the judicial process.  I have personally mediated three quite large disputes in Belfast.  Last month I spoke at a CEDR presentation to judges and senior lawyers there.  Most of the province’s senior judges were there, led by the Lord Chief justice of Northern Ireland, and I expect that there will be interesting developments over there quite soon.   There are no arrangements for registration or accreditation in Northern Ireland on the civil and commercial mediation front such as we have here.

Scotland

In Scotland the devolved Government has also provided funding in aid of the promotion of mediation.  A consultation process four years ago led to the creation of the Scottish Mediation Register, overseen by an independent Standards Board and administered by staff at the Scottish Mediation Network.  The Standards Board is concerned with every type of mediation in Scotland, and it sets standards for the admission of individual Scottish mediators to the register.  There are ten members of the Board: three represent mediators or mediation providers, and three are users or clients of mediation or public interest representatives.  They include a Scottish judge.  Two Board members have experience of setting standards in other contexts and there are two academic members.  A member of the Law Faculty at Aberdeen University and a social scientist from Stirling are the academic members.

There are arrangements in Scotland for “badging” regulators.  These regulators “badge” mediators working in particular spheres who exceed the minimum standards.  as experts in mediation of particular types of dispute.  On the family side this may be done by Relationship Scotland.  On the community mediation side, the Scottish Community Mediation Centre fills this role.  The College of Mediators is another badging regulator, and CORE Solutions Group and Catelyst Mediations have been approved as badging regulators on the civil/commercial side.  The website records an application by the Chartered Institute of Arbitrators to be a badging regulator. 

The register is a general register, open to any mediator who has undertaken not less than 30 hours of tuition and role-play, including at least 15 hours actively engaged in role-play exercises followed by a formal assessment and at least two mediations lasting at least six hours as co-mediator.  The registered mediator also has to undertake at least 12 hours of continuing practice development annually and certify that he or she complies with the Code of Practice for Mediation in Scotland (which was developed collaboratively and approved by the Board of the Scottish Mediation Network).  Each mediator must also have a written system for handling complaints and appropriate insurance.

Apart from a general code of practice for mediation in Scotland, the Scottish Mediation Network has produced a guideline on complaints handling, and two guidelines concerned with peer mediation in schools – one for trainers and one for mediators.  Registered mediators may add the logo of one or more of the badging regulators to their website entry if they can certify that they meet the additional standards required by the regulator in question.  They may also use the Scottish Mediation Register atavar on their marketing material.

Scotland is concerned with far fewer numbers, both of mediators and mediation providers, than we are in England and Wales.  Their registration arrangements began with a scheme for registering individual mediators who could certify that they met certain minimum standards.    Last year the Standards Board agreed arrangements for registering mediation providers as well.  Take-up, however, is slow.  In September 2009 Lord Gill’s Civil Justice Review found that llitigants appeared to have a more positive attitude towards mediation and other forms of ADR than respondents from the legal profession.  He suggested that “litigation is not providing all that people seek by way of dispute resolution processes and there is a desire for the civil justice system to provide a broader range of options.”

The CMC has always enjoyed very happy relations with our Scottish counterparts.

Civil and Commercial Mediation in England and Wales

I turn finally to civil and commercial mediation in England and Wales.   1989 tends to be identified as the year when it came to England.  A few English lawyers saw what was happening in the United States and Canada and wanted to do the same thing here.  By then ADR, including mediation, was already established as a subject for serious academic study in United States universities.  When I was speaking in Moscow two months ago, Lela Love, who is the director of a programme for conflict resolution at the Cardozo Law School, told me that 1989 was the year when the study of ADR was introduced into the curriculum there.  When Hazel Genn gave her Hamlyn Lecture in mediation last year, most of her footnote references are to US academic sources. 

The US scene is so entirely different from ours that I have always been hesitant about referring too much to US writers in this field.  Free court-based mediations are very often encountered because the US civil courts are far better resourced, since they receive substantial volumes of taxpayer funding, not only as subsidies for the indigent.  The dynamics of litigation and mediation over there are entirely different because there are no arrangements for costs shifting, there is a constitutional right to jury trial, there is vestigial publicly funded civil legal aid (matched by a certain amount of pro bono work) and a contingency fee agreement culture; and, above all, there is a far more advanced entrepreneurial profit-making business culture which has spread to the mediation market as well.

Anyhow, CEDR and the ADR Group were launched in 1989, and by the early nineties Commercial Court judges had started the practice of ordering stays on cases to see if they could be settled out of court by ADR, including mediation.  Lord Woolf was besieged by ADR enthusiasts when he conducted his study on Access to Justice in 1994-6, and the philosophy he espoused was reflected by the CPR in 1999 which require parties to co-operate with each other and the court in achieving the overriding objective.  They also empower the court to take the parties’ conduct into account when taking decisions about costs.

In 2002 in Dunnett v Railtrack we held in the Court of Appeal that a party to an appeal could not simply ignore a court’s suggestion that mediation should be attempted without explaining why.  Two years later, in Halsey, a different panel of the court set out the ground rules which are still effective today.  Courts can encourage mediation, perhaps in the strongest terms, but they may not order it.

The emergence of the CMC

By now the civil mediation market had begun to splinter, and It was also in 2002 that leading lights in the civil and commercial mediation world were persuaded to come together under the chairmanship of Sir Brian Neill to discuss how that community could maintain a united front in promoting civil and commercial mediation with a single voice, and could also speak authoritatively to Government and others.  This led to the creation of an interim committee, and its meetings led up to the adoption of a Constitution for a Civil Mediation Council in December 2003.  The minutes of these meetings are all on the CMC website and they reflect the way the debate ran at that time.

The newly adopted Constitution provided for a Board containing an equal number of elected provider members and individual mediators – five of each.  It also included representatives of the Bar Council and the Law Society, of two Government Departments (then the DCA and the DTI), and two elected academic members.  The Board would elect its chairman who would usually but not necessarily be a retired judge.

The DCA’s Public Service Agreement

In those days intense pressure was being applied to the Department of Constitutional Affairs (DCA) by HM Treasury.  In the 2002 Departmental Spending Review it refused to sanction much needed expenditure on the next phase of the IT modernisation programme for the civil and family courts.  Instead under its so-called Public Service Agreement with the DCA it actually required the department to reduce the number of cases which came to a court for resolution and to reduce the number of court hearings.  The department’s representative would tell the CMC’s Board from time to time what a Committee called PSA3 was doing to achieve this aim.  The promotion of mediation played an important part of the department’s strategy, at a time when the litigation market was not really ready for it.

There were two processes going on simultaneously in those early years of the CMC.  On the one hand the DCA was working out how best to promote mediation both in the cases where litigation had begun and the court itself encouraged mediation, and also in the cases where there was no litigation involvement but one or both the parties to a dispute wanted to mediate but did not know how to set about it. The Department devised the National Mediation Helpline, a call service it contracted to a mediation provider outside Taunton.  It was obvious from the start that the Helpline could not work unless the Department had confidence in the quality of the providers to whom cases would be referred.

The CMC’s accreditation scheme

At the same time the CMC was in any event anxious to set standards for its own purposes. It decided to do so by placing the burden of policing standards on the mediation providers, rather than by regulating mediators directly, for which it had neither the resources nor the remit.  In those days the number of providers was fairly small.  As recently as January 2005 the CMC only had 19 provider members.  Under its Constitution it could bestow accreditation on providers so long as they paid the requisite fee and satisfied the Board that they, the providers, met the standards required by the Board, as determined from time to time.  The Constitution also prescribed that:

“Mediators are not accredited by the Council.  Mediators are accredited by Accredited Mediation Providers or [the Bar Council or the Law Society], who are to apply the same standards in accrediting mediators as those required by the Board of Accredited Mediation Providers.”

The main task of the Board that was elected in 2004 was to decide what those standards should be.  So far as training requirements were concerned, it decided to adopt the training standards already being operated by the Law Society for solicitor mediators, which the Bar Council had also adopted for barrister mediators.  The CMC’s first Accreditation Scheme contained these provisions (which are still in effect today):

  1. “An Accredited Mediation Provider’s mediators must have successfully completed an assessed training course.
  2. That course must include training in ethics, mediation theory, mediation practice, negotiation, and role play exercises. 
  3. If the mediator is not professionally qualified in a discipline which includes law, the mediator must demonstrate a grasp of basic contract law if he/she is to undertake civil or commercial mediations. 
  4. Performance during or on completion of training must be assessed. 
  5. The training course will include not less than 24 hours of tuition and role-play followed by a formal assessment. 
  6. An Accredited Mediation Provider bears the responsibility of being satisfied that members have in fact successfully completed a recognised mediation training course and assessment.”

Reference is made to a “recognised” mediation training course, but the CMC’s Scheme has never explained what recognition entailed.  In practice there were a few well known names in the civil and commercial mediation market providing training courses, with one or two more joining as time went on.  So long as the course was run by an accredited provider and satisfied these fairly limited criteria, this was good enough for the CMC.

The CMC’s defined field of interest

What areas of mediation did the CMC concern itself with?  The early minutes show that there was a lively debate about the definition of the word “mediation” for the purposes of the Constitution.  There were some who thought that the definition should be exclusionary – every type of mediation except family mediation and so on - or inclusionary, whereby the word meant the types of mediation specified in the Constitution.  In the end the inclusionary approach won the argument.  It was common ground that because family mediation and community mediation possessed their own organisations, the CMC would not cover them.

Accordingly Article 2.1 of the Constitution provides that “mediation” means mediation and related dispute resolution techniques applied in the areas of law listed in Article 60.  Article 60, for its part, lists civil law (other than family law); commercial law; employment law; sports law; public and administrative law; regulatory law; and consumer law; together with any other areas that are added to the list by a 75% majority of those present and voting at a general meeting.

The CMC’s purpose

The CMC’s purpose, as expressed in its Constitution, was to represent the common interests of mediation providers and mediators in promoting mediation; to do so through the performance of the Council’s objects, and generally by improving the understanding of the uses and application of mediation.  Its specific objects are expressed in very general terms, remembering always the limited meaning given to the word “mediation”.  Four of them should be very attractive to academics:

  • To be a focal point for the impartial and learned consideration of issues surrounding mediation and other dispute resolution techniques;
  • To further and be a commissioning body for research into the use and application of mediation and other dispute resolution options;
  • To be a forum for debating issues surrounding mediation including through an annual series of conferences and seminars;
  • To assemble and make generally available an impartial online library of information about mediation and other dispute resolution options including practice methods, accrediting bodies and providers.
  • Three more of its specific objects show the CMC to be very concerned with mediation in the particular context of lawyers and litigation:
  • To be a neutral and independent body to represent and provide civil and commercial mediation and other dispute resolution options as alternatives to litigation and thereby to foster law reform and access to justice for the general public;
  • To be a portal for access by potential users of and referrers to mediation and other dispute resolution options including judges, lawyers and the general public;
  • To establish and foster the fullest understanding among the judiciary, lawyers and the general public of mediation and other dispute resolution options, including means of access, cost benefits and the simplicity of mediation procedure.

Perhaps its most important object is expressed in these terms:

  • To create a culture of best practice by encouraging research, continuing education and quality standards in the field; by issuing codes of good practice; and by conducting accreditation of mediation providers and through them individual mediators.
  • Not only for the sake of completeness I add its final three objects;
  • [A lobbying role]  To identify and lobby for effective legal and regulatory provisions to support mediation and its effective use; and to offer to government and others access to the considered views of the mediation community as a whole;
  • [An information-providing role]  To collate and offer appropriate information on and about mediation and other dispute resolution options including the means of access to services and practitioners.
  • [A liaison role]  To liaise with all other relevant bodies, persons and departments for the achievement of its purposes.

Court-based experiments

I now go back to the history. The Department now had to decide what to do about court referred mediation.  There were a few court-based schemes, run by local mediation enthusiasts with the encouragement and committed support of the local judges, but these were few and far between.  The PSA3 incentive allowed the Department to invest in experiments of different types of court-based mediation.  Each of these schemes was supported by independent academic evaluation, and each explored different approaches to see what worked.  Thus a Manchester scheme experimented with a single mediator conducting all the small claims mediations himself; an Exeter scheme experimented with a local group of enthusiastic lawyer mediators; a scheme at Reading focused on giving advice and information about the small claims process to unrepresented litigants.  There was also the Central London scheme, observed by Hazel Genn, which was now experimenting with court-directed mediation in suitable cases (to which the parties could then object). The Department also invested in two Mediation Awareness Weeks, in 2005 and 2006, in an effort to raise awareness of the value of mediation, among lawyers and judges and among the public generally.

Treasury-inspired gobbledy-dook appears on page 38 of the DCA Departmental Report for 2005-6:

Small Claims

“We are piloting a number of potential new services (free of charge to users) to help establish the best ways to help people with lower value disputes settle their cases before a court hearing.  The pilots will run for a year before being assessed, and we aim to begin implementing the preferred model in April 2007.

The success of these initiatives is measured during SR02 by PSA target 3 and during SR04 by PSA target 5 (measure 2).  PSA target 3 final outturn is available in Chapter 10 and data on PSA target 5 is available in chapter 2.”

Chapter 10 tells us that the agreed target of reducing the proportion of defended cases that were resolved by a hearing (as opposed to being settled beforehand) by 1.9% was triumphantly achieved, because those cases were reduced from 48.9% not to 47%, but to 41.1%.  Court hearings were also reduced by an extent even greater than a 9.3% target.  Chapter 2, which related to a new Spending Review period, referred to a new target which required the Department “to increase the opportunities for people involved in court cases to settle their disputes out of court”.  Here things were less good because instead of the targeted reduction from 40.5% to 38.5% in the proportion of disputed claims in the courts that were ultimately resolved by a hearing, the number went up to 41.3%.  However the Department explains: “Performance was expected to remain ‘flat’ in 2005-6, with the impact of planned activities being delivered over 2006-7 and 2007-8.” 

In the following year the figure was down to 40.7%, with the comment that “performance has improved significantly since July 2006 and will be further boosted through the national roll-out of small claims mediation services in 2007-8”.  The latest report, an Autumn 2009 performance report, identifies a new target of achieving a 65% resolution rate of civil cases.  This has easily been achieved, the reported half-year figure being 74%.

I mention all this because the figures illustrate vividly the problems that judges and court managers in our civil courts face on a day to day basis.  All the emphasis is placed on achieving numbers to put in boxes to make the Treasury happy, on quantity of output, not quality, and on cutting down the opportunities for judges to conduct hearings with lawyers present (as opposed to the more impersonal telephone conferences).  There is nothing in all this about the quality of the settlement process (particularly in relation to higher value claims), let alone the stage of the judicial process at which the settlement is achieved and the concomitant savings to the parties and the courts that is achieved by early settlement.  At the same time as these glossy figures were being produced, morale in the county courts, from which the figures largely come, was at rock-bottom because of financial cuts.  The descriptions of the Designated Civil Judges (DCJs) of the state of affairs in London, Manchester, Birmingham and Exeter, four courts which took their court-based mediation schemes seriously, were as follows:

 

2006-7

2007-8

London

All courts operate on a day to day basis below complement, sometimes very significantly so.  Days lost through staff sickness were 8,833. 1,965 of these days were attributed to stress.

The staffing of the courts continues to be a serious problem. With [two exceptions, the nearer to central London the greater the problem. When a manager refers to the fact that things have improved “now that staff turnover is down to 22%” it really says it all.

Birmingham

There is a limit to how much work can be induced out of an ever decreasing work force without a complete breakdown in

morale

[I said last year]: “I now believe that, in spite of the best endeavours of local administrators, we are now close to breaking point.” That observation continues to apply.

Exeter

There were high staff turnover, long term staff sickness, and resulting shortages of experienced staff.

Exeter has experienced difficulties with the recruitment and retention of staff and is currently under-resourced as it has proved impossible to fill vacancies in a timely manner.

Manchester

Whatever the statistics show, the court’s operations are creaking at the seams. Morale is low.

[The opening of the large new Civil Justice Centre is described].  On a positive note, the new environment appears to have improved staff retention

HMCS Small Claims Mediators

Against this background the Department devoted most of its available resources to small claims mediations.  It decided to recruit, first ten, and then 25 fairly senior HM Courts Service managers to act as mediators free of charge, and it provides most of them with an administrative assistant as well.  Mediation of very low value claims was not really economic for the private market, unless a lot of court resources were put into making the old court-based schemes work, and those resources simply were not there.  The department believes that quality control could be more easily achieved if salaried employees were used.

Whether or not what happened can properly be described as mediation in a purist sense is open to question, but on the face of it, and in the absence of independent academic research findings to the contrary, these arrangements appear to be working well.  I met a number of these new mediators when I was doing a tour of the courts for Lord Phillips in 2008, and they were all very enthusiastic and committed.  This is a most interesting experiment which deservedly won awards for innovation both here and in Europe, but I am sure that the time has come to subject it to rigorous academic review.  Quite apart from the very heavy emphasis on telephone mediations, generally conducted on a sequential and not a concurrent basis, I am worried that local judges do not always feel a sense of ownership in the scheme, and I am not at all sure that better use could not be made of the glut of mediators trained in the private market who are eager and willing to conduct pro bono mediations as a means of building up experience. In his 2007-8 annual report, for instance, Judge David Mitchell, the DCJ for the London courts, wrote about the desirability of engaging a second small claims mediator because demand was so high.  He did not mention the idea of going to Law Works (or other private providers) to see what they can do to help.

The NMH Scheme today

In the fast track and the multi-track NMH mediations are available to the private market at fixed fees for time-limited mediations for claims up to £50,000.  Above that value the fees are negotiable.  I began my mediation practice by doing a number of these.  The scheme as devised needed to be quite heavily policed from the centre if it was to work well, but this was not possible because of cuts made in the number of people running the scheme.  In contrast to the burgeoning numbers of small claims mediations, the number of NMH referrals to the private market has remained stubbornly static.  Part of the reason is the general problem of awareness-raising among judges and lawyers who do not take easily to change, coupled with the reduction in the occasions where the judges see lawyers face to face.  Another part of the reason is that once local solicitors are happy with a local provider organisation they will deal with it direct in future rather than go through the NMH.

The growth of civil and commercial mediation

I have said that in January 2005 there were 19 provider members of the CMC.  Today there are 71.  50 of these have also sought and obtained CMC accreditation.  These figures do not include 19 workplace provider members who are not accredited for civil and commercial mediation.  I understand that this large increase belongs in the world of unintended consequences.  To a considerable extent it is the result of giving the same rights to receive NMH referrals to a provider with five mediators on its panel as to a provider with 50.  Unsurprisingly there was every incentive for smaller panels to mushroom up, and for mediators to join a number of different panels in the hope of work.

The CMC’s Accreditation Scheme was launched in January 2006, very much on a pilot basis.  In fact the pilot is still with us, because Board members were unable to agree on what should take its place.  On retrospect it was a mistake for the Board to attempt to launch a different scheme, based on self-certification, in January last year, because our proposals contained elements which clearly should have been more clearly thought through and subjected to discussion with members first.  After the elections last February, the new Board decided to devote the whole of its two-year term of office to carefully considering the best way forward, with plenty of dialogue with members. We are now half way through that process.  Last year we engaged a full-time registrar for the first time, and with her help we have overhauled the accreditation scheme for providers.  We have also helped the Ministry of Justice (MoJ) to make much needed adjustments to the NMH scheme.  Providers are now to be given an incentive to raise awareness of mediation in their local areas, and arrangements have been agreed whereby providers can on a collective basis arrange meetings with local judges and court staff in an effort to regain some of the personal contact that was lost when the court-based schemes were abandoned.

There cannot be any room for doubt that public and professional enthusiasm for civil and commercial mediation is growing.  Our statistics for 2008, for what they are worth, appeared to show that the number of civil and commercial mediations had doubled in a single year.  We await the 2009 outturn with interest and some trepidation.  These figures do not include the 10,000 small claims mediations.  In the personal injuries market, on a micro sale I conducted 17 p.i. mediations myself last year, often meeting quite senior p.i. lawyers who had never attended a mediation before.  The small expert p.i. mediation provider company I helped to form two years ago has increased its volume of cases from two a month to more than two a week, with an 80% success rate for 63 mediations.  When I go and talk to local providers, they are usually brimful with enthusiasm about the way their business is expanding, and the possibilities they see in the future.  At least two small providers have recently merged, to form a stronger combined unit.

In 2009 the CMC launched a quarterly news sheet for its members. It gave practical guidance to its members about the effect of Mr Justice Ramsey’s decision in First Assist (No 2) and more recently about the effect of Lord Justice Jackson’s Costs Review.  It gave both oral and written evidence to Lord Justice Jackson, and it helped to open his eyes to all that is now happening, and could well happen in future in the parts of the market that lie between the very heavy commercial and construction cases at the top and small claims at the bottom.  We have a broad-based Communications Committee that is teeming with ideas about the best way to promote mediation in all spheres of our national life.  And we have the 500 responses to our Questionnaire to assimilate.  The lively AGM in December 2008 has been followed by two well attended general meetings which both tended to show that members appreciated the efforts we are making.  And attendance at our annual conference last May exceeded all our expectations and our Treasurer’s most optimistic dreams.

Current Issues

Looking forward, I want to touch on three main issues, and to say something about our relationships with academics active in this field.

I have already mentioned the delicate exploratory work we need to do in relation to the world of community mediators to see if there are points of common interest on which we could build.  An even more important issue is to decide on the new minimum standards we should set for what we might properly call “CMC-recognised” training providers.  Of course we want to see training standards develop, possibly with the introduction of the equivalent of badges on the Scottish model for those who have successfully passed specialist courses (like the workplace conversion courses) or more advanced courses.  We also need to decide what minimum standards we should require for pre-practice observerships, CPD and in-practice continuing experience.  For 2010-11 our Scheme prescribes:

  1. An Accredited Mediation Provider must require its new mediators to have observed at least three mediations over the last 12 months before they are eligible for appointment as a lead mediator. One of these observerships may be of a role-play nature. 
  2. All the Provider’s mediators must have observed or conducted at least two mediations in the 12 months prior to its accreditation (or re-accreditation) in order to ensure that they have current practice experience. This mediation practice requirement can be met by substituting two simulated mediation practice sessions of at least 1 hour each, or one community mediation, or two telephone mediations for one of the two actual or observed mediations that are required.

My own view, after the thorough debates last year, is that the CMC should only concern itself with minimum standards for mediators on our accredited provider’s panels.  On the other hand we should facilitate a much wider discussion involving training organisations and academics as well as mediators and mediation providers, on ways of achieving more sophisticated arrangements for badging and possibly something equivalent to the Scottish Standards Board, if means can be found to pay for it.  Discussions with the College of Mediators, with their track record of setting standards in other fields of mediation, might well prove to be fruitful. Debbie De Girolamo has kindly undertaken a fact-finding study for us of what is currently being provided or planned by each of the training institutions.  Once this is completed in mid-March there needs to be a very thorough debate along the lines I have indicated.  We are currently searching for more information about the training standards for mediators in other comparable countries.

The third important issue stems from a request from most of those who responded to our Questionnaire that we should provide on our website a searchable list of all those of our paid up members who would like to have their mediator CVs and contact details available to the market.  An idea along similar lines encountered strong opposition 12 months ago, particularly when it was suggested that registration might serve as some kind of kite-mark and that those who did not wish to register might eventually be excluded from publicly funded work.  The present suggestion is far more modest, although it continues to encounter opposition from those who see no need for it and who fear that this might be the start of a creeping form of regulation.  My own view is that if we can work out a satisfactory scheme we should provide it.  It is what most of the respondents to our survey want us to do, and it falls within our power to collate and offer appropriate information about the means of access to practitioners.

Links with the academic community

Finally, we face the challenge of continuing to build strong links with the academic community.  The arrangements for having two elected academic members on the Board have never really worked, and I have not yet detected any great enthusiasm for this.  On the other hand the invigorated Academic Committee, initiated by Professor Simon Roberts and currently led by Professor Loukas Mistelis, seems to be working well.  We now meet three times a year, combining a two-hour committee meeting with a two-hour seminar, like this one.  These meetings, which any academic can attend, are providing a valuable bridge between the academic and the practitioner world.  The Academic Committee has already agreed to undertake a study of what is being done to teach ADR – and particularly mediation -  at undergraduate, graduate, and BVC and LPC level.  It is well on the way to revamping the Library section of our website, which their predecessors initiated four years ago; and there are some very interesting suggestions being made about different types of collaboration in the future.

This is the snapshot I promised you in the title to this talk.  We are involved in some very interesting times.  And we look forward with gratitude to the help I know we are going to receive from academics in working out the best way forward.

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