Law: Mediation is the message

Lawyers finally seem to be coming round to the idea that there is an alternative to courtroom litigation.
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The Independent Culture
There is no better advertisement for mediation than the latest statistics released by the Centre for Dispute Resolution (CEDR), which confirm lawyers as the second- biggest users of its service. This contrasts positively with a study carried out last year at the Central London County Court, which suggested that lawyers act as a hindrance to claimants looking for an alternative to litigation. It would seem that at last the mediation message is getting through, converting some well-known lawyers to the cause along the way - among them Lavender Patten, wife of the Tory grandee Chris Patten.

They say there are 10 million mediators in China, although it may not have seemed that way to Chris Patten during his time as the Governor of Hong Kong. But while he was locked in tough negotiations with the Chinese over the colony's return, his wife was becoming interested in a concept that has long been part of the Eastern tradition. "In countries such as China and Japan their cultures are not confrontational, and they've always used mediation a lot as the traditional way of dealing with problems. Now the West has discovered it and is trying to catch up," says Mrs Patten.

So impressed was she by what she saw that, on her return to the UK last year, she decided to train as a mediator rather than resuming her career at the Bar which she had interrupted for Hong Kong. She now works for the Surrey Family Mediation Service, which is based in Dorking. As with all family mediators, her role is to encourage couples who are separating or divorcing to try to work out the best arrangements after the split for themselves and any children, rather than have a solution imposed by the court. "I don't think anyone initially wants to take a case to court because it's a daunting prospect, and expensive," suggests Mrs Patten. "The more people are able to use alternative routes, the better. I think that it's important that both parties sit down and try to come to an arrangement that suits them both, instead of always thinking in terms of winners and losers."

The concept of mediation in family law is not new, but has been steadily gaining ground since the Seventies. Mediators in the field of commercial law have come rather later on the scene, but they now stand on the verge of becoming big business with the introduction of rules that can allow a judge to insist that the parties undertake mediation - also known as "alternative dispute resolution" - as a way of keeping the case out of court. Mediation is, of course, a central part of Lord Woolf's reforms, which came into force last week, and if lawyers believe in it then they are much more likely to be able to sell the idea on to their clients.

Perhaps one reason lawyers are quick to see the benefit of mediation is the obvious saving in costs - estimated to be pounds 86,000 per party in commercial disputes. The CEDR believes the mediation bandwagon is now truly rolling. Between March 1998 and March 1999 mediations grew by a third, with lawyers representing 14 per cent of the growth. The trend looks certain to continue. Professor Karl Mackie predicts: "Mediations will increase again significantly over the coming year with the introduction of the civil procedure rules... indications from the lead judges of the main courts are that this growth is set to continue."

One of those most enthusiastic for change is Alistair Logan, who's had more experience of courtroom confrontation than most as the solicitor who acted for the Guildford Four and the Maguire Seven in their long campaigns to prove that they were the victims of miscarriages of justice. With those cases finally resolved, he moved into the field of family law and now runs the British Association of Legal Mediators with his wife Pat. He thinks that one of the biggest problems for the profession is the almost invisible public profile it's had up to now: "The trouble is that many people's perception of the law comes from TV programmes like Kavanagh QC and all these courtroom dramas that pander to the idea of the lawyer as aggressive and confrontational. There needs to be a culture change so the message goes out that it's simply not macho to sue. Perhaps what we need is a story line about mediation in EastEnders?" Mr Logan believes that, if mediation does take hold in a big way - and new rules for divorce due to come in next year will also strengthen the role of mediators in the field of family law - then what he calls these "Rottweiler" lawyers could become a thing of the past in the field of civil litigation.

Cynics might suggest that that's part of the reason why so many lawyers are themselves moving into mediation, a profession originally pioneered largely by social workers and psychologists. Even so there are real concerns about whether there are going to be enough competent mediators available to deal with the expected surge in referrals after "Woolf day". At the moment there is no formal requirement for training or qualifications, which could open the door to cowboy operators if demand outstrips supply. And while the bewildering variety of mediation bodies already in existence - such as the Centre for Dispute Resolution, National Family Mediation, Mediation UK, the UK College of Family Mediators and the Alternative Dispute Resolution Group - suggests that factions may already be opening up within the profession, moves to set up one single regulatory body to oversee them all seem be progressing at a far slower place.

That's something that worries Sheila Griffiths, a former civil servant who has now retrained as a mediator. She says that, unless a proper infrastructure can be created together with an easy way of accessing information about suitable mediators, then the courts will rapidly lose faith in "alternative dispute resolution", and it will fail.

With a family solicitor, Jane Hunt has launched the Surrey Mediation Forum - believed to be the first regional group of its kind - to provide support for all the county's mediators and to act as the first point of contact for those who need to be put in touch with them or want information on mediation generally. And, like Alistair Logan, she wants to increase public awareness of the profession as a whole; at the moment, she says, mediation is too often seen as the last resort when it should be the first.

One who doesn't need convincing is Lavender Patten, who was among those who attended the launch of Surrey Mediation Forum. "I'd be most interested to talk to other mediators in commercial and neighbourhood mediation. It's important that we promote the benefits of mediation. We believe in it and we want other people to believe in it. Does that sound like a crusade? Well in a way that's exactly what it is."