Got a problem? Mediators are waiting for your call
It's one of the few boom industries of 2012. But what is mediation? Does it work? And could this new breed of adviser be putting lawyers out of business?
There was a time when, if you wanted to get a divorce, complain about your doctor or fall out with a colleague, the only people who could help you were lawyers – and the only place to settle things was the cold, adversarial surroundings of the courtroom.
Now, a new breed of professional is increasingly taking up the burden of dispute resolution in nearly every sector of the law: the mediator – a neutral third party observer who does not take sides, but tries to help both parties come to an agreement before they call in the lawyers – avoiding the courts, the emotional fallout and, crucially, the legal fees.
At a time of economic stagnation and government penny-pinching, it is one of the few professions that is actually expanding. Its practitioners believe it has the potential to revolutionise the British legal system.
"There are more people training to be mediators than there have ever been," said Neil Robinson, vice-chairman of the Family Mediator's Association, which represents 420 mediators. "We've had 800 years of an adversarial legal system and it will take a couple of generations for it to set in – but it's getting there."
Applications to train as a mediator at National Family Mediation, the UK's largest family mediator service, have more than doubled in the past year. TCM, the country's leading workplace mediation service, saw applications increase tenfold in the second half of 2011.
Although many practitioners are former lawyers, mediators do not necessarily need legal training and new mediators are most often former professionals beginning a second career.
Mediation's diverse set of practitioners include among their ranks former journalists, teachers, psychotherapists and businessmen, and their services can be applied to most potential disputes where lawyers might otherwise be brought in.
The cost of mediation services vary, but its practitioners say it is cheaper than taking out legal proceedings. Jane Robey, the chief executive of National Family Mediation, said the average cost of mediation was between £1,200 and £1,400 – compared with £14,000 for divorce proceedings. She says that in some cases, mediation has even kept couples together.
TCM, which focuses on the professional arena, now advises Marks & Spencer, HSBC and BT, as well as a number of Whitehall departments.
TCM's founder, David Liddle, said: "Organisations have been reliant for 30 or 40 years on grievance processes which put people into pitched battles – they're adversarial, they have negative outcomes that create stress, and they leave one or both parties feeling bruised or battered – and in the worst cases, going to court. Now there's a wide recognition among business leaders that the old approach has failed systematically. Mediation is a different way of solving our differences – talking, engaging and listening to one another."
The Government is whole-heartedly backing the growth of the sector and has spent £25m in support of mediation services.
Where the change is being most felt, however, is in family disputes. The Family Justice Review, published in November, recommended that all separating couples wishing to make a court application for divorce should first seek mediation – saving the Government from meeting the bill for lengthy and costly court proceedings and massively increasing the demand for mediation services.
Mr Robinson, at the Family Mediator's Association, said: "I'm sure what fuels the Government's position is that it will be cheaper if fewer cases get to court – we are one of the winners of the cost-cutting policies."
The Government is planning to cut legal aid by £350m a year. Taxpayer funding will no longer be routinely available in most private family law cases, and in disputes over clinical negligence, employment, immigration, some debt and housing issues, some education cases and welfare benefits.
Resolution, the national association representing 6,000 family lawyers, urged the Government not to view mediation as a "silver bullet" alternative to the law courts. It estimated that the process could be unsuitable in up to 40 per cent of divorce cases.
"There now a lot more incentives to seek mediation, but there's a risk that it will be seen as the be all and end all," a spokesman for Resolution said. "It can be very useful but it's not always the answer."
Sarah Barclay, a former journalist who has founded a mediation service specialising in disputes between health professionals and parents of children who require medical care, said: "There are some cases that have to go to court because they can never be resolved through mediation and there are genuinely difficult legal and ethical matters to be decided.
"But in some of those disputes, which may be about breakdowns in trust or communication between parents and health professionals for whatever reason – the idea behind this is that if you help people to identify what's going wrong at an early stage the chances of you finding some kind of resolution without letting things escalate is much higher."
Talk it through: The new dispute specialists
“It was always residually there and something I thought I could do”
Katherine Falk began training with the Family Mediation Association last year. She previously worked in marketing and ran a company in London for 10 years. She now works at The Mediation Centre in Stafford.
I came in from left-field. A good friend of mine who used to be a family lawyer made me aware of it. I would have gone into it sooner if had known about it. I remember staff at school nicknamed me the peacemaker: it was always residually there and something I thought I could do. It's a vertical learning curve not coming from a legal background. I made a huge effort to talk to Cafcas officers and sit in on hearings in the family courts. The most important thing to learn is to determine what is best for the client.
“Procedures for dealing with conflict at work too often leave everyone feeling damaged”
Steve Dickens worked in aviation for 30 years and was a security manager at Heathrow. He mediates on workplace disputes with TCM.
I saw all sorts of conflicts at work – problems between staff and staff, between employees and management, between ourselves and the airlines or passengers. If I'm honest, we didn't always deal with those things terribly well.
“Grievance procedures for dealing with conflict at work too often leave everyone feeling damaged and bruised and very often don't resolve the problem at all. I think the mediation work TCM does is really exciting.
”It's voluntary so it's about trying to put the power back into the hands of the parties“
Sarah Barclay spent 20 years at the BBC, including time as a health and social affairs correspondent. In 2010 she founded the Medical Mediation Foundation, which specialises in disputes between medical professionals and parents of children who require medical care. To become a mediator Barclay initially did 50 hours of training at the Regents College in London and volunteered with the Camden Mediation Service, which resolves community disputes. Her Medical Mediation Foundation was awarded a grant by the Department of Health's £30m children's palliative care fund.
For me it came out of having made a lot of television programmes that involved really difficult dilemmas and disagreements between doctors and families, specifically parents and children.
I started to think that there must be a different way, or at least, I wanted to see if I could get involved in a different way that would help people resolve those quite complicated dilemmas in a less public, less confrontational way.”
The whole point about mediation is that it is voluntary so it's about trying to put the power back into the hands of the parties.
There are some cases that have to go to court because they can never be resolved through mediation. But in other disputes – which may be about breakdowns in trust or communication between parents and health professionals for whatever reason – if you help people to identify what's going wrong at an early stage the chances of you finding some kind of resolution without letting things escalate are much higher.
So, did you find mediation a useful process?
Yes, says James the ex-husband
Three years ago my wife and I agreed to separate after six years of marriage. Just over a year ago, she got in touch to say she believed she would be entitled to more than she had been receiving under our settlement. She had a case, but whatever extra she might be entitled to, I thought, would likely be less than we would end up spending on lawyers.
We went to see a mediator, who advised, taking into account the money I had paid her during our marriage, that she should reasonably have expected slightly more than I had being paying her over the last three years, and I settled the difference with a lump sum.
Maintaining good relations after a divorce is a very challenging process, and had we gone down the lawyer route, I do wonder if our friendship would have survived.
No, says Clive the angry neighbour
We had a restaurant we were trying to sell. We thought we had a buyer but just before exchange of contracts our neighbour sought to claim a strip of what we had thought was our land. It was only a few inches but if conceded it meant the edge of our garage was on his land – and he either wanted it moved or wanted compensation.
We sought to go to court but were advised to first attempt mediation. Our solicitor found the mediator. She did not seem very analytical or incisive, and certainly lacked the personality to impose herself on proceedings or to give one confidence in her judgement. Most surprising of all, we expected her to come up with her own proposals to help forge a compromise, but she offered nothing. The one positive was that eventually we went to court and won. Our neighbour had to pay our costs (£100,000). If we had not gone to mediation perhaps we would have had to pay them ourselves.
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