Sometimes it's good to talk
Why go to court when you might be able to settle a dispute with a mediator? Liza Donaldson reports
Wednesday 29 November 1995
Earlier this month, the Centre for Dispute Resolution celebrated its fifth anniversary by announcing that it had handled nearly 900 cases with values ranging from pounds 200 to pounds 200m since it was set up. But although businesses that have used the CEDR point to the cost savings to be had, mediation is still regarded as a fringe activity.
One milestone came in January this year when it was made mandatory in commercial cases going to the High Court for consideration to be given to alternative dispute resolution (ADR), mainly mediation.
In September, the first medical negligence case to go to mediation here, under a pilot scheme to be evaluated by the Department of Health, was settled. It showed, if extended nationwide, potential savings of millions to the NHS in legal costs.
A watershed was passed earlier this monthwhen the Family Law Bill had its first reading in the House of Lords, with provisions to encourage divorcing couples to resolve questions of money, property and children through mediation.
Those at the top of the legal profession and mediation experts, however, recognise that the public and lawyers are still in the dark about what mediation is.
Andrew Floyer-Acland, a mediation expert who began his career in the field as an assistant to Terry Waite, says mediation is an ancient art used by the Chinese back in 5,000BC. Britain is, by world comparisons, "very backwards in the field".
Mr Acland, whose new book, Resolving Disputes Without Going to Court - A Consumer Guide to ADR has just been published, suggests that lawyers themselves are partly to blame. Legal training has only just, some two years ago, incorporated mediation. He adds, with a twinkle, that some lawyers, recognising that mediation was far quicker and cheaper than recourse to law, saw ADR standing for "Alarming Drop in Revenue".
This is denied by the Lord Chancellor, Lord Mackay, who says mediation presents not a threat to lawyers' livelihoods but, rather, opportunities for them to extend the range of services. Mr Acland, however, is concerned that legal eagles could complicate mediation. "Mediation is a very simple idea. You use an independent third party to help people have difficult conversations."
The outcome of a dispute is an agreement negotiated by the parties themselves, unlike arbitration, where the arbiter decides. Mediation is not, as Lord Justice Woolf writes in his Access to Justice report, about "dispensing justice"; it is, Mr Acland says, about "facilitating agreement - when people want to agree". In short, "mediation is simply negotiation with knobs on".
He does, however, welcome Lord Woolf's interim report proposing an overhaul of the civil justice system, including recommendations to courts to encourage the use of ADR. If implemented along with the Family Law Bill, Mr Acland argues, measures such as these will make mediation central to the UK legal system.
Lord Woolf said it was important "to make the public more aware of the possibilities ADR offers". His call will bear fruit next month when the Lord Chancellor's Department launches a free guide, Resolving Disputes Without Going to Court.
So what is the future of mediation in this country? Standards vary considerably because anyone can knock up a brass plate and claim to be a mediator. All the established centres for mediation recognise that training and standards of accreditation are vital.
Mediation UK, which deals largely with community disputes, is launching a service next year to accredit community mediation. The commercial mediation sector, represented by organisations such the ADR Group in Bristol and the CEDR, is working to develop standards of ac-creditation. In the family arena, the Family Mediators Association, National Family Mediation and Family Mediation Scotland, have clubbed together to launch the joint standards body the UK College of Family Mediators next year to oversee training and practice. The promise of public money for mediation, whether through legal aid funds or other sources, is another carrot.
Lord Mackay, however, warns: "There is a great deal of progress to be made before I can envisage public money being paid directly to mediation services on a nationwide basis."
Given that mediators can provide evidence of a reliable, quality service that is easily accessible to the public, mediation is likely to grow. Mediation UK already has 50 centres and the CEDR is expanding its network of three high-street centres to 12 from next year. Experts foresee much wider use of mediation.
Tony Billinghurst, director of Mediation UK says: "Generally, mediation is appropriate in many more situations than those in which it is currently used." Areas where growth is predicted are in care of children and the elderly, dealing with complaints and environmental issues, where notable recent stand-offs include the Brent Spar affair.
A groundswell of popular public support is also helping to spread the use of mediation. A recent National Consumer Council survey of 1,000 adults who had had civil disputes in the past three years shows not only disillusionment with the courts but a preference for a move away from the courts' win- or-lose scenario. Three out of four said they would have preferred some form of ADR, particularly mediation, to litigation.
But Mr Acland warns that mediation is not a cure-all. "In some cases, it is entirely appropriate there should be a battle," he says. Where legal precedents need to be set, or an injunction issued, courts are more appropriate. In some cases, one of party wants public vindication or humiliation of the other. Here mediation is not appropriate. Where it is, mediation can provide a win-win for all parties. Instead of winning or losing a disputed orange in court, or compromising by dividing it in half, the parties may get what they actually want through mediation, which could be the pith in one case and juice in the other.
This, Mr Acland suggests, is a better way of resolving conflicts. "The end of the 20th century has not been a model for resolving conflicts peacefully. It is worth experimenting with ADR as a small step on the long road to finding better means to prevent and resolve the age-old problem of human conflict."
'Resolving Disputes without going to court - a consumer guide to ADR', by Andrew Floyer-Acland, is published by Century, pounds 12.99.
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