Court Mediation Scheme - A Cause for Concern

By Dr Ann Brady

As someone who has been a court mediator for the last five years undertaking small claims, fast track and multi-track court level cases I have grave concerns about the Court Service’s plan to press ahead with rolling out the Manchester Court Mediation scheme to every court area in England from April 2008. This scheme has been based on the experience of just one man – James Rustidge - an ex-police officer who has run a pilot in Manchester since June 2005 and the scheme has not been as stringently researched as other court schemes¹. Furthermore, his “success rate” – i.e. the number of cases that he has settled - has not been matched at other courts where similar schemes are being piloted². Apart from success rates and customer satisfaction, the Manchester Model raises a number of issues that need to be addressed.

Lay mediators

The first is whether it is appropriate for lay mediators to handle mediations where the parties have taken no legal advice prior to putting their claims into court and the second is whether is it appropriate for a government department responsible for the administration and financial control of the court service to be advertising and using its own staff to undertake cases which would otherwise have been handled by a judge. In addition to these issues, another new development is also taking place; the use of judges as mediators. The pilot Court Settlement Process in the Technology and Construction Court whereby judges in that court can act as mediators, but not in cases assigned to them for interlocutory application or trial³ is now to be evaluated, but at other civil courts a few judges are starting to mediate small claims⁴. The possibility of using judges as mediators is not a new idea. ‘When the creation of the new county courts was being considered before the enactment of the County Courts Act 1846, Lord Brougham suggested that the judges of these new courts should be able to conduct both mediations and arbitrations.’⁵

Court mediation schemes are still part of an evolving system to find the most effective way of delivering a national court mediation service. It would be unfortunate if the Manchester Model is permitted, in the interests of expediency, to bulldoze out of its roll-out path, not only long-standing and successful court schemes⁶ but also newer ideas, such as using judges as mediators.

Specialist knowledge

The practice of mediation has changed over the last fifteen years and has moved from the generalist approach of former years when any mediator could handle any type of dispute; mediators are now expected to have some knowledge or experience in the field in which they are appointed to act. Mediators now tend to classify themselves into three sectors; community, family or commercial mediators and it is family and commercial mediators who tend to be involved in court schemes. Within the court system, there are a number of court mediation schemes in operation; outside the court system there are countless numbers of mediators and mediation organisations offering their services to the public on a voluntary or fee paying basis. Solicitors’ practices and barristers’ chambers also offer mediation services⁷.

Cost-cutting

Using mediation within the legal system, apart from its known benefits, is clearly a cost-cutting exercise. Globally this is not unusual; many countries in the world face the problems of delay in the civil litigation process and spiralling costs to the public purse. For example, the Legal Services Commission (LSC) statistics⁸ indicate that nearly 800,000 cases of civil legal help were funded by legal aid over the last year, up 12.5%, making this the second record-breaking year in a row, and the greatest number of civil cases in a year since the LSC was set up in 2000. Statistics indicate that in 2006-2007 the cases where legal aid funding was granted included debt, employment, housing, mental health and family law, which included domestic violence, children taken into care and the resolution of contact disputes.

Legal advice

However, despite these admirable increases, those of us who regularly undertake non-family small claims mediations in the county court know that many of the claimants and defendants who come to court mediations have taken no legal advice about their disputes, are not legally represented and one may surmise would not qualify for legal aid. There has been ‘a change in the scope of legal aid since the days following the Rushcliffe Report of 1945 when the Civil Aid and Advice Act 1949 seemed to usher in a new dawn⁹. Furthermore, despite all the advertising about the availability of both voluntary and fee earning mediation services, disputing parties still choose to put their claims into court. Indeed in county courts where the National Mediation Helpline (NMH)¹⁰ is the designated court mediation scheme, the leaflets for this scheme are normally sited beside the leaflets that tell parties how to make a claim or defend a claim. From here, however, parties can still find their cases diverted to the NMH or a variety of court mediation services, depending on that operated by the court.

Risk of costs

Judges make the decision to hand cases over for mediation based on Court of Appeal guidelines which set out when parties can refuse to consider mediation¹¹. Parties who unreasonably refuse to consider mediation are at risk of costs, even if they win their case. It is thus vital, particularly for those who are without the benefit of legal advice and representation, that those who mediate cases are best suited to the task. Furthermore, judges at courts offering mediation schemes also need to be assured that the cases they are handing over for mediation will be handled by appropriate mediators. It needs to be remembered that mediators, unlike judges, do not have a commission to regulate their activities.

Two-tier system

Mediation in terms of legal disputes operates a two-tier system. Disputing parties who agree to mediation at fast or multi-track case level, whether this is part of a court mediation scheme or in commercial practice, normally have taken legal advice and are legally represented at mediations. Barristers and solicitors are now trained in mediation advocacy where they learn conciliatory skills designed to bring about a possible mutually-agreed settlement between the parties¹². At small claims level the parties generally have no such advantages. The result is that unadvised and unrepresented parties at small claims mediations sometimes seek answers to questions about costs, documents and evidence relating to their dispute. In an ideal world parties would have received this type of information from their legal advisers before putting their claims into court, but this is not the reality for many small claimants and defendants.

Most appropriate mediators

So the question to be asked is who is most appropriate to handle this type of mediation – lay mediators, those with appropriate legal qualifications or even judges? Furthermore, how does a court mediator handle parties who ask such questions about their case? Should the mediator say that such questions are of no relevance to the dispute and plough on with trying to get what is known as an “interest based” settlement with parties remaining ignorant as to what the law may have required of them if they go to trial? Lawyer-mediators¹³ are trained to handle such questions by giving the information in a non-evaluative way, because it is not the job of a mediator to tell the parties what a judge might decide in their case. The careful giving of such information when requested is of value to those who have not taken legal advice and are unrepresented.

It should not be forgotten, however, that in the search for a settlement, a broader range of solutions is explored at the mediation than is possible at trial. Thus it is critical that mediators dealing with small claims are equipped to give such information to those who request it. Furthermore suitably qualified mediators, to be cost effective, should be capable of reading and understanding the contents of the court file quickly, and be able to grasp the details of the dispute from the court file without further training. Whilst techniques such as telephone mediation are commonplace in mediation practice, it is not always cost effective in terms of the court mediator’s time. For example, two experienced mediators working back-to-back at Exeter Court’s time-limited mediation scheme are able to handle up to twelve cases in a morning session. The satisfaction that parties’ gain from “having their day in court” even if the appointment is for mediation rather than going to trial, is also something that should not be underestimated.

Helpline

These issues are also relevant to the National Mediation Helpline (NMH). Under this scheme the court loses control of all responsibility for the costs of administering the scheme or the “quality control” of mediators. The NMH is a privatised out-of-court mediation service and the cases it receives are farmed out, on a rota basis, to more than twenty mediation organisations who provide mediation services to the public¹⁴ and who are part of the NMH Scheme. Parties, in general, have to pay for the service, although ‘in some circumstances, mediation might even be free.’¹⁵ The mediation providers arrange accommodation, and success is defined as the parties reaching agreement through mediation and client satisfaction indicated on the questionnaires which are completed by the parties. To qualify to be on the rota of the NMH Scheme, providers have to be accredited by the Civil Mediation Council (CMC)¹⁶. The CMC would argue that it has now laid down fairly stringent tests for mediation providers in relation to the initial training of mediators and their continuing professional development.

owever, with a rota of so many mediation organisations (who in turn have large numbers of mediators on their lists) and no central control, it is difficult to keep a check on how mediations are being conducted. Mediators come from a range of backgrounds including those who have had no legal training whatsoever. The CMC does not take responsibility for the conduct or performance of individual mediators and ‘if the courts encourage and indeed recommend mediation, the judges must have confidence in the quality of the mediators who will undertake the task.’¹⁷ ‘This is not an ideal scheme because it is the individual mediator whose competence is in issue.’¹⁸

Evaluation

The NMH Scheme has not as yet been as stringently evaluated as some other court schemes¹⁹ and statistics related to running costs, success rates both in terms of overall success and those of individual mediation organisations providing the service are difficult to obtain. Furthermore, the providers themselves are reluctant to publish how many mediations they conduct each year whether this is part of the NMH Scheme or as part of their general work load. As one commentator has pointed out ‘we do not have any comprehensive statistics showing the total number of mediations conducted in England and Wales every year²⁰.

Court mediation

Court Mediation is step-by-step gaining acceptance by members of the public, by the legal profession and by judges. Both the Exeter Court Scheme, using deputy district judges as well as barristers and solicitors as mediators and the pilot Court Settlement Process in the Technology and Construction Court have opened the doors for constructive discussions as to which type of mediators should be used in particular sections of the court’s work. Like all public services, there is not a bottomless pit of money available for a national court mediation service and efficiency equates with mediators getting good rates of settlements so that cases disappear from the court lists. However, getting good rates of settlements and thus cost cutting should not mean justice cutting even if it comes in the shape of mediation rather than a formal trial. This point was raised by judges attending the ‘Making ADR Work’ Workshop held in Oxford in 2001 and organised by Professor Martin Partington, the then Chair of the ADR Committee of the Civil Justice Council. The Minutes of this workshop record the views of those present²² that the Department of Constitutional Affairs²³ should not expect to get mediation ‘on the cheap.’ It was further recorded that one type of mediation scheme might not suit all courts.

National system

The task confronting the Better Dispute Resolution Team²⁴ is to find an appropriate and efficient method of delivering a national court mediation service while keeping an eye on the financial budget. However, an eye should also be kept on the “quality control” of the service provided by mediators and also on which mediators are best suited to which task. The particular needs of those who have had no legal advice prior to putting their papers into court and also those who bring cases to the specialist courts should not be overlooked.

Making mediation part of the legal system is a long term process. Permitting existing and successful court mediation schemes to continue while considering new ideas, such as judges as mediators, will serve the system better than trying to impose nationally schemes such as the Manchester Court Mediation Scheme and the National Mediation Helpline which have yet to be rigorously tested.

Footnotes

1. Exeter and Guildford Courts by Dr.Sue Prince and the London County Court Scheme by Professor Hazel Genn.
2. For example Bristol Court.
3. This pilot runs from June 1st 2006 to July 31st 2007.  At the end of this period, the scheme will be evaluated to see whether it should be adopted or continued with modification.
See: www.hmcourts-service.gov.uk
4. Bournemouth and Swindon Courts
5. Neill, Sir Brian, (2007) Mediation and its Future Prospects Arbitration, The International Journal of Arbitration, Mediation and Dispute Management, Vol.73 No.1 p.2
6. Such as the Devon and Exeter Law Society Court Scheme which has been in continuous operation since 2002.
7. hminkoff@barcouncil.org.uk   www.barcouncil.org.uk
8. As reported in the Independent 14th May 2007 Law Diary
9. Neill, Sir Brian (2007) Mediation and its Future Prospects Arbitration, the International Journal of Arbitration, Mediation and Dispute Manager, Vol .73 No.1 p. 3
10. Telephone No: 0845 60 30 809 or www.nationalmediationhelpline.com
11. Halsey v. Milton Keynes NHS Trust [2004]EWCA Civ 576
12. See www.mediationadvocates.org.uk - The Standing Conference of Mediation Advocates  (SCMA)
13. Such as Devon and Exeter Law Society Court Mediation Scheme comprising barrister, solicitor and deputy district judge mediators.
14. They comprise commercial and voluntary organisations
15. Quoted from the National Mediation Helpline Leaflet, although no further details are given.
16. CMC came into being in April 2003 as an unincorporated association, and its constitution embodies its objects: to be a neutral and independent body to represent and promote civil and commercial mediation and other dispute resolution options as alternatives to litigation and thereby to further law reform and access to justice for the general public.  It hopes to create a culture of best practice by encouraging research, continuing education and by accrediting mediation providers.
17. Neill, Sir Brian, Op cit p.4
18. Neill, Sir Brian Op. cit p.4
19. Such as Exeter and Guildford Courts by Dr.Sue Prince of Exeter University and London County Court by Professor Hazel Genn.
20. Willis, Tony (2006) Arbitration, The Journal of the Chartered Institute of Arbitrators, Vol.72 No.4.
21. The current Chair is Tim Wallis,  a Mediator and Solicitor
22. Those attending included judges, legal academics, court managers and members of the Devon and Exeter Law Society Court Mediation Scheme
23. Now Ministry of Justice
24. The department within the Ministry of Justice is responsible for policy development of a national court mediation service.