UK: Mediation Awareness… Weak??

For those of you who did not read about it or visit it, this brief article is a resume of a year-long effort by the DCA and court staff, supported by army of unpaid mediators, that obviously failed.

Yes, this focal Week was scheduled to take place 24^th to 28^th or October. During its gestation period, it mutated into a fortnight, as it was realised that half the country was on half term and so this may have seriously affected the ability of court staff to participate in it.

So what started as a punchy and marketable week became a rather uncomfortable fortnight. Nevertheless, at ground level, it was a success. Over 60 courts held events for staff, public and lawyers. Although some reported cancellations due to lack of interest, most courts, including mine in Suffolk, had a series of events and made contact with lawyers and members of the public in a way that undoubtedly would not have happened without this DCA initiative.

In my mediation work, I am less interested in writing about what may be considered theory and more interested in looking at how and when it may be used. I am finding that the conclusions I draw are inevitably provisional and I need to constantly update them. What follows is the evidence of this Campaign as it affects some of the assumptions I work with in mediation.

This is the semi-mythical attitude to mediation nurtured by the Jarndyce v. Jarndyce wing of the legal profession. … the love that dare not speak its name: a lawyer’s natural love of money. We should not be too po-faced about this, there are serious financial threats to the viability of various areas of the legal profession and this can be related to access to justice questions. However, my personal view is that there is no doubt that the pre-Woolf litigation system was inflated, inefficient and constituted something of a cash cow for a section of lawyers. My impression from this exercise is that the Jarndyce Wing is out there and operates by "knocking back" lawyers who suggest mediation. They may be found out in future costs hearings [ I received some indication of this being imminent] but that will turn on how local judges interpret the case law we have. In any event, if the Jarndyce faction are true to form, we shall know nothing for at least a hundred years or until all interlocutory options and appeals are exhausted.

As part of our participation in the week, we wrote to every practice in Suffolk and offered CPD Sessions on mediation. The response rate was approximately 10%. Discounting practices that may not be involved in dispute resolution, this is actually quite a good figure as mailshots of this sort may be expected to yield less than 2% - though that is a figure from courses you have to pay for. Our letters to the profession explained that we were all in the DCA campaign and invited a response, even if only to say why this was of no interest or a waste of time. No-one provided that information: possibly a silence of more interest than anything else. Shame – but not too late. Please do email me if you are reading this from the "waste of Time" camp.

One quite senior lawyer responded that he was unable to attend the seminar, but that the mediation message had been, for him, sufficiently "rammed home".

That may be a good indicator of where mediation awareness efforts should be directed [i.e. elsewhere] as perhaps much of the profession feels it has heard enough and has enough information to make informed decisions.

Pursuing that notion, I contacted the local Chamber of Commerce to see if they would like some sort of seminar for the kind of people that ultimately make choices and pay the bills: businessman who may become involved in commercial disputes and want to consider mediation.

My inquiry was initially ignored and I followed it up by telephone. I was left with a feeling something akin to that of a failed double glazing salesman. Perhaps, not being versed in the subtle skills of marketing, my approach had been too clumsy:

I genuinely thought that as mediation is about taking control and saving time and money, it was an obvious choice for a breakfast meeting with the Rear Admirals of Industry. It is something I shall return to, as I believe there is probably room for further information-giving and discussion with the client base direct.

One undoubted area of increased mediation update will be from the law which now gives councils powers to make orders about the height of hedges.

An integral part of the process is a reference to mediation. Neighbours who become embroiled in the dispute will have to pay several hundred pounds to the local council if seeking adjudication. Mediations should occur before that. Although it would be beneficial to provide more mediation free of charge, someone must bear the cost, and, in this area, it is a privately funded operation. Having already conducted some mediations in this area, since the law came into force in the middle of this year, I do hope there is sufficient information about mediators to allow people to try it first: the convoluted and long-winded statutory procedure is likely to have the same effect as small Claims proceedings in that the neighbours may become polarised and progressively more bitter as they pursue their dispute to adjudication. One person who came to "meet a mediator" was furious that the cost of the council would not be borne by the "losing" party.

One of the most positive events that I took part in was two seminars for local CAB advisers. It is obvious to me in retrospect that they are a vital link in the information chain. They are the people to whom disputants turn when they cannot readily fund legal advice. They are the advisers in cases where funding problems, and the anxiety of people caught in disputes, are often at there worst. The collective response was positive and I expect them, as a group, to develop their knowledge of mediation in relation to the kinds of problems they have in-depth experience of. I hope they will broker mediation appropriately. Again, it is important that they are given whatever support is necessary in additional training and access to information. More than one of them saw the appeal of mediation as "directness".

I discovered further potential in talking to the group (interestingly, at the court Open Day that was very well attended. I would have predicted it as appealing to the public about as much about a Closed Day at Bluewater] that is running a pilot scheme of restorative justice. It is in its infancy in this country, but the general idea of diverting [particularly] young people from the criminal justice system deserves our attention. It may not work extensively, but if it does allow at least a section of people on the edge of criminality to acknowledge their offence and then mediate either with their victim or "the community" generally, it cannot be negative development. The cynical may say that the clever young criminal will exploit this opportunity. So be it, every system is open to exploitation and it is never a reason for not working on the positive elements of an initiative that is trying to deal with the huge amount of antisocial behaviour within our communities. Devolving responsibility and limiting the burden on the police force are both worthy [in the best sense] objectives.

Closely related to this are the many Community mediation schemes operated by volunteers throughout the country. Expanding awareness of this way of helping in individual cases may prevent the escalation of a dispute and the involvement of the civil or criminal court systems. This sort of mediation takes place largely without lawyers, though some lawyers do participate as volunteer mediators.

One vital area of mediation that I did not become involved in (because a have no experience of it) is that connected with the family division in divorce proceedings and more generally. The courts are well informed of this type of mediation and those individuals who become involved in divorce proceedings will be drawn into it and given information and support. There is undoubtedly still scope for wider [and earlier] availability of information on how to involve the mediator, but it does appear to be one more well-established sectors of mediation.

My personal conclusion is that deciding to participate in the week has opened several windows and taught me a good deal about areas of mediation I do not operate in. It has afforded at least a glimpse of where mediation has reached the consciousness of people within the area in which I live.

It is never going to rival the World Cup or perhaps even Energy Saving Week as a headline grabber, but as mediation finds its natural level within the various mechanisms of justice that we operate, I believe was a useful exercise that should be repeated. Perhaps not next year, after all, that is a World Cup year….

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