PI Brief Update

FREE BOOK SAMPLE: from 'Practical Mediation'' by Jonathan Dingle with John Sephton

03/10/17. Mediation is now is a key form of what many commentators call Alternative Dispute Resolution (ADR). The ‘alternative’ here is to having a decision imposed by a judge in court. Thus mediation is advanced as a consensual process, based on self-determination, that involves the participants (or ‘parties’) in the dispute meeting (generally in person but sometimes through various online technologies) with a neutral third person. These participants may or may not be joined by their lawyers, advisers, or various supporters.

The supposed mutual aim of mediation, or indeed any ADR, is to find a resolution to the dispute or problem that the parties face. Whether that is the real aim, or whatever the motive, around 80% of the time those coming to mediation leave with an agreement of some description. More than 90% of people leave mediations expressing satisfaction with the process – a consumer rating that would be envied in most sectors of commerce.

Mediation is a confidential and ‘without prejudice’ neutrally moderated conversation that allows participants, should they wish, to explore potential solutions in what should be a safe environment. The neutral person, or mediator, may be active or passive, creative or a blank canvas: seemingly a guide, philosopher and friend on some occasions or perhaps little more than a post box on others. Usually the aim will be to find a mutually acceptable solution.

That solution need not be, and often is not, an outcome that a judge might or could properly impose through a decision in a court, which may be limited by legal constraints, rights, and precedents. Whilst it must not be immoral or illegal, unconscionable or oppressive, a solution can be quite distinct from an arbitral award. It is simply the unique resolution found by the parties in the mediation that is 'good enough' for them in all the circumstances.

Mediation may provide a Fisher & Ury¹ "win-win" outcome for the participants. As part of the search for a solution a skilled mediator will often look for the kind of added value which is often missed in mainstream negotiations, but can be a way of removing deadlock.

1.1 An Idea of Mediation

Practical Mediation is thus intended generally to be a forward-focussed conversation. It is preferable to avoid backward-looking recriminations and analyses. Some mediations require such introspection and implosions. Others do not. The past cannot be changed, but it can be cathartic to explore important experiences, even if the mediator is the only audience, and then, from the ruins, set out to rebuild relationships – if this is needed for resolution.

But the authors are clear: mediation is not an arbitration. Nor a trial. Nor yet a quiz. It does not require the mediator to know or to tell the participants the solution ­– or generally even to venture suggestions, although in evaluative mediation there may be options for this to happen as discussed later. Normally, the solution is for the participants to find. One that suffices to meet their needs, concerns, and interests. Control therefore remains with the participants. Mediation does not involve the mediator telling the participants what a judge may or will do, or who is right or who is wrong. Nor does it usually involve the mediator assessing the merits of the case: after all, the mediator may not be aware of all of the relevant information, or law.

Mediators are commonly not lawyers and, because participants generally bring their own advisors, mediators do not need to be experts in the law behind the dispute. Where mediators are invited and permitted to evaluate, under a clear contractual framework, they will still decline to do so if they do not believe that they have adequate information or knowledge.

There are many misconceptions of the role of the mediator, which may hinder participants agreeing to mediate. Those commonly encountered are:

• Mediation requires compromise from one or both participants – it does not: very often the outcome is unexpected and one that allows growth.

• The mediator is an evaluator – there should be no material evaluation by a mediator: any assessment of risk or merit is for the participants to decide.

• The mediator is an arbitrator – arbitration is a wholly different statute-based process involving legal assessment by, in effect, a private judge.

• The mediator will impose a solution – a mediator has no such power, or desire.

• The mediator will knock heads together – a mediator has no such role.

• The mediator will apply pressure on the participants – the only pressure that participants experience is that from their own assessment of risk.

• The mediator will advise the participants what to do – no, the participants must rely on their own judgment, or that of their advisers.

1.1.1 Mediation and adding value

The concept of adding value is demonstrated by the apocryphal anecdote known as The Mediator's Orange. It has been fondly told to generations of training courses and begins with a parent going into the kitchen to find two children arguing over the last orange in the fruit bowl. The parent intervenes, taking the fruit from the children and cutting it in half. Each child is given half of the orange. One child goes into the lounge and sits down to peel that half of the orange. The child does so, throws the peel in the bin, and eats the fruit. The other child stays in the kitchen, carefully removes the peel from the fruit, throws the fruit away, and uses the peel to flavour icing and bake a cake.

The knife represents the law: the equal division was a legal solution. But the outcome could have been very different had the parent asked: "Why do you want the orange?". Had that happened, and had each child answered honestly, then both could have had 100% more. The parent could have added value at no cost – with perhaps the chance to gain even better involvement with the hungry offspring.

Apocryphal, maybe, but a key tool for the mediator to use, in open or private sessions, is the question “why”? That question can, even if unanswered, cause participants to begin or further a process of reflection that allows at the very least some direction for the mediation to be established.

The authors suggest, and adopt as a theme throughout this work, that by floating questions mediators can add value to the process and so engage with the participants. Difficult or challenging questions, or reality testing, when conducted neutrally with no compulsion to answer, is part of that catalytic chapter in mediation that can be so enervating.

1.1.2 The origins of the species

Practical Mediation is not new. The authors acknowledge Sir Brian Neill’s paper² which a decade ago noted that many outside the law, and in particular historians, were surprised that ADR processes have taken so long to come to the fore in contemporary Western society. Other civilisations embraced mediation long ago. There are references to mediation in Justinian, and before that historians speak of the Phoenicians using mediation in commercial disputes. In Greece a mediator was termed a προξενητης, or matchmaker.

In China there has been a long tradition of compromise where Confucian philosophy favours persuasion rather than coercion. In Kerala there is a similar history of negotiated settlement and appropriately the Indian Institute of Arbitration and Mediation is based in Cochin. There are many traditions where a neutral third party has helped disputants reach an accord: the Quakers, as merely one example, have played a distinguished role.

But in the West, and despite Abraham Lincoln’s enjoinder:

‘Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough’

the practice until the 20^th century was to use a third party as a judge in formal court proceedings – or more recently an arbitrator or adjudicator – to determine a dispute, rather than to enlist a neutral to assist the disputants to reach a conclusion themselves. The legal route, and the philosophy behind litigation, was adversarial, costly and time consuming

Gradually, however, with the rising complexity of law, increasing delays and the international nature of business, people began to question whether there might not be a more effective alternative to litigation. Conciliation procedures began to spring up in industrial relations, notably in the cotton and mining industries and in the US in 1896 the Conciliation Act was passed. Not long after that the US Department of Labor set up a panel of Commissioners of Conciliation to handle disputes. It is generally recognised, however, that it was not until the last third or so of the 20^th century that serious attention was given to the settlement of disputes by mediation. The early drivers towards ADR in the New World were not, however, directly a response to the needs of clients for control or choice.

Rather the precipitators were the clogged court systems and prohibitive costs associated with traditional litigation. It became fashionable to criticise the use of courts and their Victorian values when a more Aquarian option was developing.

ADR organisations in Canada, for example, emerged 30 or so years ago to become major clearing houses³ for litigation through combining the skills of forward thinking QCs, recently retired judges and ADR practitioners keen on promoting access to justice – with the demands of the insurance industry. This cost-aware industry began effectively promoting the use of mediation in personal injury and clinical negligence claims to avoid leakage and reserve overruns. Lawyers and clients were initially suspicious of the spread of ADR. Volpe and Bahn reported in 1992⁴ that lawyers in particular felt threatened or discomforted by a process they did not understand⁵⁶. Some felt they may not be able to charge the usual fees, or that reasonable expectations of profiting from costs may be thwarted⁷.

There is still some resistance to mediation in a number of outlying countries which, on examination, appears to say more about the litigators involved, or their financial interests, than the merits or otherwise of mediation. The UK Government, in contrast, came into mediation with the Government Pledge announced on 23^rd March 2001 to embrace ADR and mediation, followed by the Dispute Resolution Commitment⁸ a decade later. The savings and effectiveness are reported and reviewed therein, and wide-ranging resources including the Small Claims Mediation Service⁹ and (the now unfunded) National Mediation Helpline that have been used to promote mediation.

A continent or more away, in South Africa, the Court-Annexed Mediation Rules which apply in the District and Regional Courts form part of Government's effort to transform the civil justice and enhance access to justice. The Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) were approved by the Minister and came into operation on 1 December 2014. The pilot project sites in (as of 2017) Gauteng and the North-West Province have met with some success in conjunction with the rationalisation process.

The objective of these Rules is to assist Case-Flow Management in the reduction of disputes appearing before Court and to promote access to justice. The Rules make provision for the referral of disputes for mediation at any stage during civil proceedings, provided that judgment has not been delivered by the Presiding Officer. Mediation adopts a flexible approach compared to the rigid and tedious legal processes which most often require services of a lawyer to present before court. Disputes are usually resolved in a reconciliatory manner and mediation, therefore, promotes restorative justice.

To assist with the implementation of the Mediation Rules the Minister appointed an Advisory Committee which will advise the Minister regarding the norms and standards for mediators and for the accreditation of mediators for enlistment to the panel as required by the Mediation Rules¹⁰.

Back in the United Kingdom, the Ministry of Justice offers (for England and Wales) direct access to mediators on a voluntary basis – through http://civilmediation.justice.gov.uk/ on a fixed fee basis. The site tells users (as of 1^st September 2017) that:

Table 1: The cost of mediation via the online directory service

* The mediator/mediation provider should agree in advance whether this should be dealt with in one or two hours. For the one-hour rate the option is available to facilitate settlement over the telephone if appropriate, and if the parties agree.

** If the claim is for more than £50,000, the fees will need to be agreed with the organisation providing the mediation.

Why has this happened? Cost and speed are certainly factors attracting governments and individuals, organisations and litigants to mediation worldwide in this age of austerity. Privacy and confidentiality are others.

It is important to understand the scope of mediation and how it can and should work. It is equally important to grasp that the process must be structured yet flexible, with a clear contractual framework that allows parties and mediator to know what can be done.

1.1.3 The scope of mediation

Mediation is a voluntary process for resolving disputes by mutual agreement. It differs fundamentally from both arbitration and judicial determination at a trial in that no decision is, or can be, imposed by the mediator. Any settlement arising at mediation will be one which the participants own, and have created for themselves. The mediator is a midwife rather than a parent.

Mediation can be applied to all, or to just a discreet part, of a dispute. Brown and Marriott¹¹ observe that a dispute is a class or kind of conflict which manifests itself in a distinct, justiciable issue; a disagreement over issues capable of resolution by negotiation, mediation, or third party adjudication. Mediation offers an impartial, mutually acceptable and neutral guide to help disputing parties through the tangled thicket of their conflict¹² to a resolution of their own crafting.

In contrast to a trial, mediation is a private process, normally paid for by the participants, conducted at a time, at a place, and by a mediator of their choice. It follows the principles of self-determination and works under an ethical code. See Section 10 (below) for the AoA(SA) Code of Conduct.

1.1.4 Mediation: A legal or contractual process?

For now, at least, in the United Kingdom mediation is a contractual process.

Spain (as from July 2012¹³ ), Austria (as from June 2003¹⁴ ), Ireland¹⁵ and many other states have a mediation law, or court rules for mediation, but in the United Kingdom there are presently none. Ireland has recently gone further than its Court Rules. In 2017 it published the Mediation Bill which is expected, at the time of writing to become law.

The Bill’s objectives¹⁶ are to:

• introduce an obligation on solicitors and barristers to advise parties to disputes to consider utilising mediation as a means of resolving them and, where court proceedings are launched, requires parties to proceedings to confirm to the court that they have been so advised and have considered using mediation as a means of resolving the dispute;

• in family law cases, parties will be required to attend an information session on mediation;

• provide that a court may, on its own initiative or on the initiative of the parties, and following the commencement of proceedings, invite the parties to consider mediation as a means of resolving the dispute;

• provide for the suspension of court proceedings in such cases to facilitate the mediation process;

• contain general principles for the conduct of mediation by qualified mediators; 

• provide that communications between parties during mediation shall be confidential;

• provide that the parties to the mediation determine among themselves the enforceability of any agreement reached during the mediation process;

• provide that the costs of mediation must be reasonable and proportionate and not linked to the outcome of the process;

• make specific provision for the involvement of children in mediation in family law disputes;

• provide for the introduction of codes of practice for the conduct of mediation by qualified mediators.

In South Africa¹⁷, as discussed above, there are pilot scheme rules¹⁸ for Court Annexed mediation but more widely used are organisation’s bespoke rules such as those of the Association of Arbitrators (Southern Africa¹⁹).

Thus, the participants will normally sign a Mediation Agreement with the mediator which defines the procedure and sets out what the participants and the mediator can and cannot do, before, at, and after the mediation. It is therefore not a creature of statute, and can exist entirely outside the current Civil Procedure Rules 1998 (CPR²⁰) which defines the legal process.

There are several advantages to mediation being a non-judicial process. It follows that because the process is voluntary, contractual, and independent of statutory restriction, the solutions which the parties decide to adopt do not need – in most cases – to have anything in common with the orders to which a court or arbitrator are restricted.

Apologies, explanations, meetings with consultants, amendments to policies, staff retraining, changes in procedures, therapy, counselling, admission for further or new treatments and second opinions are just some examples of highly creative solutions which mediations devise and which judges cannot aspire.

1.1.5 Mediation and English Rules of Court

Although there is neither proscription nor regulation, the English CPR does seek to encourage ADR, and so by implication mediation:

Rule 1.4(1) obliges the court to further the overriding objective of enabling the court to deal with cases justly by actively managing cases. Rule 1.4(2)(e) defines active case management as including encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.

Rule 26.4(1)²¹ provides that a party may, when filing the completed allocation questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means. The court/judiciary can also stay the case if considered appropriate.

Rule 26.4A²² says in the case of Small Claims (up to £10,000 in non-personal injury matters):

(1)Referral to the Mediation Service

26.4A

(1) This rule applies to claims started in the County Court which would normally be allocated to the small claims track pursuant to rule 26.6.

(2) This rule does not apply to—

(a) road traffic accident, personal injury or housing disrepair claims; or

(b) any claim in which any party to the proceedings does not agree to referral to the Mediation Service.

(3) In this rule, 'the Mediation Service' means the Small Claims Mediation Service operated by Her Majesty’s Courts and Tribunals Service.

(4) Where all parties indicate on their directions questionnaire that they agree to mediation, the claim will be referred to the Mediation Service.

(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for—

(a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or

(b) the claim to be restored for hearing of the full amount claimed,

unless the parties have agreed that the claim is to be discontinued or dismissed.

Rule 44.4(3)(a)(ii)²³ requires the court, in deciding the amount of costs to be awarded, to have regard to the conduct of the parties, including in particular the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.

The pre-action protocols²⁴ contain standard wording on ADR, to the effect that:

“The parties should consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt. Both the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if this paragraph is not followed then the court must have regard to such conduct when determining costs."

There is therefore much for the practitioner to consider and this is supported by, as has been mentioned earlier, the encouragement of the referral website²⁵ and the work of the Civil Mediation Council²⁶ as well as the Society of Mediators...

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