Development Of Commercial Mediator Skills Training In England And Wales

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The UK mediation
market has developed organically, both in a self-regulatory sense and in the
development of training programmes and growth of the market in general.  This compares with the development of
mediation in other international jurisdictions where regulation and standards
have tended to come before the mediation market is established.  The primary difference in approach is
that in the UK, mediation and mediator training tends to be flexible and
practical, the development and delivery of training programmes often being led
by practising mediators.  In other
countries with a much more rigid approach to regulation and common standards,
the content and structure of training tends to be theoretical often being
delivered by academics rather than practicing mediators.  In some examples, notably, as exampled
below, Bosnia,
this approach can stifle the development of the field as little or no attention
is given to nurturing demand.

With
more and more cross border mediation happening, regulation and common standards
are however an inevitable debate. 
But the author along with many UK mediators will continue to lobby
against restrictive definitions for training standards, mediator registration
or regulatory systems in favour of rigorous ‘Codes of Good
Practice’ or ‘Codes of Conduct’ within a robust
self-regulatory environment.

MY VIEW

Recently I was running a mediator skills
training programme to a group of senior lawyers and academics in Hong Kong and they remarked how practical and enjoyable
the course was, but also how rigorous they were finding it. They said it was
different to any other training they had experienced and asked me whether this
was typical of mediator training in England.   We discussed this some more but
these comments stayed with me and when asked to write this article, their words
came flooding back to me.  If asked
to summarise the mediator skills training in England, the words
‘practical, enjoyable and rigorous’, are as good a description as
any.

And in answer to their question I would
have to say that mediator skills training has indeed developed in a particular
way in the United Kingdom
and this has lead to some distinctive hallmarks which differentiates it from
similar training in other jurisdictions. This article will explore the
development of mediator skills training in the UK and give an explanation as to
why these hallmarks have emerged. 

When looking at the development of mediator
training in the UK,
reference will be made to the major mediation training providers.  However, particular reference will be
made to the Centre for Effective Dispute Resolution (CEDR).  Not only is it one of the largest and
most well known mediator training providers it is also the one with which this
writer is most familiar.

GETTING THINGS STARTED: AWARENESS OR TRAINING

It is obviously an essential part of any
developmental programme to raise awareness among key influencers – gain
their buy in and a certain momentum will start.  However in order to protect any
fledgling concept it is essential to ensure that there is a core body of
experts who can deliver a quality service, certainly one which will
perpetuate repeat use.  Once this
core body of expert mediators is established and there is a ground swell of
need, invariably the group will form some type of organisation to ensure the
integrity of the service, the expansion of influence into different sectors of
business to ensure that demand meets supply and vice versa.  Once established, questions of
regulation; integration into civil procedure; other uses of the process; and,
as sophistication of the use increases, advanced skills development of mediators
is inevitable.

So it was with the beginnings of mediation
in England and Wales.  Prior to the late 1980’s there was
very little awareness of mediation as we know it, let alone anyone practising
mediation.  There was no demand for
the services of mediators nor training for people to become mediators.

In the late 1980’s a group of lawyers
who had had experience of mediation practice in the United
States, began to ask whether this was a process that had
a place in civil litigation in England
and Wales.[1]  The awareness campaign that ensued resulted
in the launch in 1989 of the ADR Group in Bristol
and of CEDR in London with the backing of the
Confederation of British Industry and support from 60 of the UK’s
leading FTSE 100 companies and leading law firms.  Few could have predicted then that the
work done by these early pioneers would result in the integration of mediation
into the Civil Procedure rules some 15 years later and the creation of many
more regional and national providers and groupings of independent mediators
offering both mediations and mediation training. 

It is with this backdrop that the first
training courses need to be put into perspective.  In the early days of mediation training
it is questionable whether the objective of the programme was solely to train
participants to be mediators or to give equal weighting to raising awareness,
particularly amongst the legal community, of the basic concepts of mediation
and its uses.

All agreed that an intrinsic ingredient to the success
of either or both of these objectives would be the development of a course that
would provide a wide enough choice of highly skilled and therefore respected
individuals with diverse professional and business backgrounds so as to support
any growth potential. 

Furthermore, and this arguably was
to impact most significantly on the perceptions of the course today (as
expressed by those Hong Kong delegates), it was decided that training and
mediation practice should be driven by the client’s needs, i.e. as a
commercial transaction rather than developing a life of its own out of touch
with the real objectives of those involved.  As a result and from the outset there
was a focus on the development of a practice based skill set.

The first courses, which actually professed
themselves to be skills training and not merely awareness-raising sessions were
nevertheless very rudimentary in nature. They comprised of inherently practical
tips based on Faculty’s own experiences and were often led by experienced
American mediator trainers complimented by English pioneers in mediation.[2]  Over time this colonisation of American
mediators ceased once local mediators and trainers gained sufficient experience
to lead training.

From these early origins of mixed objective
programmes, mediator skills training in England began to develop.

NON-REGULATORY APPROACH

The regulatory  development in England and Wales was not uniform and could
best be described as ‘organic’.  There was never any attempt in the early
years of mediation training to prescribe what must be taught or how it should
be taught.  Also at this point, by
now in the early 1990’s, Government was not yet interested in mediation
as a formal process to be used in civil litigation and therefore left mediation
organisations to decide these issues for themselves.

As mentioned above, one of the core
drivers for the development of mediation and therefore of the development of
the training of mediators, was to provide an inherently pragmatic set of skills
that were flexible enough to relate to the end client’s specific requirements
– whatever these might be.  It
is perhaps opportune at this point to touch on what types of situations might
be faced in commercial mediation. 
These span every industry; dispute type – from intellectual property to
breach of contract; they  can involve
purely monetary solutions; short or long term changes in business practice; or,
can deal with highly emotionally charged disputes from personal injury claims
to employment discrimination claims. 
Flexibility of the process is therefore fundamental to the success of
mediation implementation.

The mediation profession in these
early days did not attempt to self-regulate in relation to standards.  Their energy was focussed in raising
awareness of mediation, the power of the process and of developing something
that was client responsive.  It was
very much a case of each training provider being free to develop their training
the way they felt best met the needs of their participants.  This led to a very market-driven
approach with training providers each separately developing their courses and
allowing the market to decide on quality through the market forces of word-of
mouth and reputation.

Accordingly, in the early to mid
1990’s the training skills courses continued along the lines of this
organic development.  From an
initial focus on process, the course began to also focus on the skills required
to be a good mediator.  Trainers
began to realise that merely describing the process was insufficient,
participants also had to be taught and had to practice, the skills which make
an effective mediator.  
Consequently the length of the training courses began to grow from what
were initially short half day courses or seminars in the early 1990’s to
longer three or four day courses and, by the mid 1990’s, to the five plus
days that we find the norm today.

International comparisons

It is perhaps this organic, practical
development of mediation that particularly sets the UK
mediator training development apart from other courses run in Europe
and elsewhere.

By contrast, in many other
jurisdictions particularly in continental Europe,
once an initial group of mediators are trained, they often go on to form a
mediators association, which invariable starts to become a professional
regulatory body, setting out standards for training service delivery.  This is consistent with the civil law
approach of requiring things to be clearly set down before it can occur.  Inevitably, the consequence is a much
more rigid approach which,  in turn,
leads to the content of mediator skills training being prescribed from very
early stages and all providers having substantially the same content and indeed
structure of training.

In Austria[3]
for example the regulation of the training and accreditation of mediators is
governed by the Civil Law on Mediation Training which sets out the content and
scope of training in this field. 
Training courses tend to comprise a minimum of 200 hours (most UK courses are
40 hours) of theoretical learning, in addition to practical modules.   The principal mediation providers
were organised under an umbrella organisation, Plattform fur mediation and
tend to be sector based, for example one covering the legal profession, another
representing notaries and another tax accountants.  An Advisory Board ZivMediatG was
then set up with specific rights and obligations to the Ministry of Justice
provided for by law. A very similar situation is found in Germany.

The Netherlands[4]
is unique in that it has one umbrella organisation Nederlands mediation
Instituu’ (‘NMI’) which enjoys strong links with the
Ministry of Justice.  It does not
train mediators itself but accredits certain institutions to do so.

The experience in Bosnia and Herzegovina
is perhaps instructive in this respect. Since 2003 Bosnia made impressive strides in the
development of mediation in civil disputes, facilitated through a project
funded by the IFC/World Bank.[5]  After initial training and workshops in
mediation the Bosnian Association of Mediators was formed. This Association has
developed in essence to become the quasi- regulatory body for the registration
of mediators in Bosnia and
Herzegovina, to the extent that in 2005 the
Federal Government formally delegated this to the Association[6].
The registration process is clearly set out with little flexibility and
requires core training, advanced training[7]
and mentoring prior to being registered as a mediator. 

While, on the face of it, this would
ensure the quality of mediators acting in Bosnia, this focus on a regulatory
approach has two main drawbacks. The first is that it diverts the scarce
resources of the Association to the supply side of mediation i.e. the
registering of mediators. 
Insufficient attention to developing the demand side of the equation,
has resulted in mediation numbers dropping off in recent years and therefore
insufficient mediati0ns for the mediators who are being registered.  Secondly, it is an overly restrictive
approach, which does not allow for mediation to develop.  As the Association is the only
organisation that can train and register mediators there is in effect a
bottleneck that stifles the development of the field. If more organisations had
a stake in the field then perhaps more competitive creativity would lead to
increased use of mediations.

FOCUS ON THE PRACTICAL

The organic growth of mediator training in
the UK
is also related to another key distinguishing factor of training as compared
with our continental neighbours.

Many civil law jurisdictions given there
more prescribed nature, take a more academic approach to the training as can be
seen in Austria, Germany and Holland as examples.

The content of courses often contain
modules on theory of disputes/conflict. 
In addition it is often universities that are the providers of training
which results in a much more didactic approach to delivery of training than is
the case in the UK.
This is often accentuated by the fact that those delivering the training are
from an academic background with little practical experience as commercial
mediators.

This is, as has been seen, in stark
contrast to the organic development of mediator training in the UK where,
almost without exception, trainers are practising mediators themselves.  From the very initial days, those who
were involved in kick-starting interest in mediation, and trained as the first
mediators, also went on to practice as commercial mediators. It was also this
group of people who took over the reins from the American trainers and began to
develop local trainer capacity.

This more experiential approach was
emphasised by the fact that training was not driven by academic institutions
but by mediation organisations such as CEDR, ADR Group and latterly CIArb, who
were mediation service providers as well as trainers.

Continued development –
virtual circle

The result of this was an almost perfect
virtual circle of learning: mediators informed learning and in turn the
learning informed better mediation practice.

A good example of this in later course
development is the role of the mediator in the negotiation process during the later
stages of the mediation process. For many years training courses focussed much
of their attention on the exploration phases of the mediation process and
taught the more traditional facilitative model of mediator intervention.
However over the years, trainers, all of whom were predominantly trained
mediators themselves, began to feel that the mediator’s role in
‘coaching’ parties during the negotiation phase of a commercial
mediation, was a crucial skill for any commercial mediator and this needed to
be reflected in any training development for new mediators.  Accordingly course content was changed
to focus more on this phase of the mediation and provide more skills practice
for participants in managing offers and deadlock in the mediation.

The content of the training therefore tends
to emphasise the practical application of the skills, which either the new
mediator finds particularly difficult or which experience has shown are crucial
for commercial mediators.  
Delegates need to have a critical, theoretical and practical
understanding of the importance of relationship, process and content skills for
effectively mediating commercial disputes.

To achieve this, the course uses a
number of different training methodologies to facilitate participants’
learning.

Ø      
Theory

·        
Theoretical pre-course reading

·        
Presentation of information

 

Ø      
Participative Skills exercises

·        
Negotiation skills

·        
Effective questioning

·        
Use on non-verbal communication

 

Ø      
Simulated role-plays of
commercial disputes

·        
Participants get to act as a
mediator at least 4 times during the course as well as play the role of parties
and lawyers to enable them to see a dispute form all perspectives

 

Ø      
Group lead learning debriefs
facilitated by trainer

·        
In order to reinforce learning
both from exercises and role play, trainers facilitate debrief sessions to draw
out learning points

Ø      
Personal coaching and
one-on-one feedback

·        
The high trainer ratio allows
all learners to receive detailed coaching during their performance as mediators
on role-plays. In addition at the end of these role plays, each learner is
given three 15 minute private sessions of one to one feedback from experienced
mediators

Ø      
Reflective Learning

·        
Learning logs

·        
Post course self assessment

SETTING A STANDARD: COMPETENCY BASED ASSESSMENT

As mentioned earlier, mediation in the UK developed
without any form of regulation in relation to training provision. This also
meant that there was no ‘certification’ or registration system
post-training that established a mediator’s competence. Given this
‘free-market’ approach and in a bid to establish a baseline of
competence for mediators in order to instil confidence in the users of
mediators, it was decided very early on in the development of mediation
training in England, that courses should not only teach and allow participants
to practice the skills and process of mediation but it should also provide the
assessment of competence of the participants on the course.

It was a difficult decision to take, but
one that has helped to herald UK accreditation as a worldwide recognised stamp
of excellence and reinforce the UK as being one of the most robust providers
(as claimed by those delegates in Hong Kong) of mediator training courses on
the international scene.  For most
providers, accreditation would turn on assessment of mediation skills, not just
completion of the course.  This is
not a token assessment as it is on many courses, but a genuinely tough standard
that some fail to attain.[8] 

Accordingly assessment of participants to
determine their competence to mediate commercial disputes is now an accepted
part of all mediator training from the major providers in England.

Each provider assesses in a slightly
different way. For example the Chartered Institute of Arbitrators separate
their assessment completely from the teaching of the process and skills of
commercial mediation[9],
while CEDR provide the assessment as an integral part of one course
incorporating both elements.  This
assessment process has developed over the years initially with delegates
assessed on one role-play only. 
Over time this has become more rigorous with each participant being
assessed twice on separate days.

The criteria used by a training
organisation in assessing competence also differ and have been developed over
the years by each organisation. 
From the outset, those developing courses in the UK were clear
that mediator skills are primarily practical and pragmatic in orientation.  Theoretical debates on models of
mediation are important but tend to fade into insignificance beside the robustness
required to play the third-party role effectively in a real case.  The teaching on UK courses is
therefore predominantly around skills training and uses role-play in simulated
cases as the dominant methodology.

No pre-requisite skills or professional
background are generally required prior to attending the course, many of the
skills for effective mediation being centred on practical skills. The power of
the UK
model is to allow the learner to enhance these skills, putting them into a
framework which assists parties with the resolution of their dispute.

As an example when assessing delegates I
use a set of competencies based around:

Ø      
Relationship skills

o       
Creates an environment
conducive to mediation

o       
Develops communication and
interaction with the parties

Ø      
Process skills

o       
Establishes and maintains and
effective working structure

o       
Manages the process and phases
of mediation

Ø      
Content skills

o       
Facilitates the parties in
creating solutions and moving toward settlement

o       
Facilitates momentum and
progress through active engagement with the parties and the content 

 

To gain accreditation delegates must obtain
a majority of ‘competencies’ (seven) across the 12 competency areas
over the two assessment days.  If
this level is not attained, delegates will only be invited to re-take if they
have obtained at least one competency in each of the core skills i.e.
Relationship, Process and Content. 

The latest development in assessment in
recent years in England
is in providers’ attempts to ensure consistency of assessment and quality
assurance.  Led initially by the
Chartered Institute and followed by other major training providers, most
assessments are now video recorded, which allow for subsequent review to ensure
consistency of assessment and also for the handling of appeals against
non-award of accreditation. 

Continuing professional development

However it was recognised in the UK that
competency-based assessment at the point of training in itself was not
sufficient to ensure that mediators’ skills were current and up-to-date.
Accordingly, in the mid 1990’s mediator training bodies began to
establish continuing professional development (‘CPD’) requirements
for mediators. These were not mandatory for mediators starting out their career
but provided a framework against which mediators could benchmark their growing
practice. 

CPD requirements were that over a two
year period mediators had:

·        
To be involved in a minimum of
four days of mediations, two of which were debriefed with a fellow mediator

·        
Undergone 16 hours of further
structured training

·        
Participated in further
learning (e.g. attending seminars, conferences, published articles)

These were designed to support mediators
who at that time did not have the wealth of experience that ten years on they
now have.  CPD requirements have
therefore evolved with their growing sophistication to provide extended
training, senior mediator networking opportunities, etc whilst the more basic
CPD requirements still prevails for the hundreds of new mediators trained every
year.

It should be noted however that in an
unregulated market such as the UK,
mediators not working through any mediation organisation have no CPD
requirements for them to keep their practice current – they operate on the
basis of their reputations alone.

THE FUTURE

Expanding the marketplace

One of our greatest challenges since
inception has been how to create a large enough marketplace to provide work for
the mediators we have trained.  This
remains a challenge for all providers and all the more so, ironically, as the
marketplace grows and more and more mediators create new provider bodies.  A biennial mediation audit[10]
showed the estimated size of the civil and commercial mediation market in the
UK being in the order of 3,500 cases per annum (roughly 33% up on our 2005
estimate).

Despite this growth the market is
increasingly dominated by a select few. 
The 2007 Mediator Audit showed that there is a group of around 80
individuals who collectively are involved in nearly 80% of commercial cases
(2005: 65 individuals held 70%) and within this group some 35 individuals are
involved in 57% of all cases (2005: 50%).

Not useful statistics for marketing a
mediator training course then! 
Fortunately, and again because of the decision taken early on not to be
bound by regulatory debates on certification but to develop a course with
practical application to the needs of the client, training of mediators in the
UK has always tended to be multilayered. 
That is to say they respond not only to the training for
‘standards’ purposes but also training for basic life and conflict
management competencies.  The
debates on training for standards purposes have always sounded narrow and even
sterile compared to what can be contemplated in running a mediator course.  Participants often emerge from the
course much better negotiators, even as counsel.  Intensive practice as a mediator helps
throw light on the narrowness of the typical negotiator’s perspective.  Participants have also told us that they
find the course to be life changing – as I am sure our Hong
Kong delegates will concur. 
It helps them recognise the frequent failings of argument,
adversarialism and partisanship.

Interestingly, in research done on the
principal reasons for delegates attending mediator training courses in 2007[11],
only 59% gave wishing to mediate as their primary driver.  10% were there to improve their
professional skills and 31% their general communication and conflict handling
skills.

We strongly believe that the future lies in
these very skills.  There will
always be a need for the litigation-alternative mediation, just as litigation
has its own valuable place in civil justice regime.  However, increasingly conflict
management skills are emerging as valuable tools in themselves, the ultimate
aim being to prevent day-to-day conflict escalating into a dispute.  Organisations can do much more to embed
systems into their business practices to assist in this aim.

The regulation debate

As has been
seen, the UK
mediation market has avoided statutory regulation.  It was established by practising
mediators for essentially pragmatic aims and early promulgators believed
regulation would constrict its development and turn it into the beaurocratic
disaster, which many now view has befallen arbitration. 

This is not to say that this debate has not
dogged mediation development in the UK over the past 20 years.  It has, and still does today.  The Civil Mediation Council
(‘CMC’) was set up five years ago with the support of 35 ADR
providers, professional bodies, independent mediators and practitioners and
with the objectives to focus on legal reform and education as well as acting as
a focal point for information.  It
is now going through an internal debate as to whether or not to standardise
accreditation and to act as regulator of the field.

Dr Karl Mackie, Chief Executive of CEDR and
appointed Deputy Chair of the CMC is leading the counter debate.  In his response to the consultation
process on standardising accreditation[12]
Dr Mackie said:

‘I suggest
at a philosophical/strategic level that we should positively become a
standard-bearer globally to challenge the trend to bureaucratisation of
mediation by way of over-definition of standards. We should support the
evolution of ideas and variety of training approaches on a free market basis
because of the core values in our field of flexibility and adaptability.  We should be proud that we can celebrate
diversity and the flexibility of the mediation process where others are tempted
to narrow its boundaries into mechanical formulae.’

This is not to say that there is not a
valuable role for such a body as the CMC. 
Dr Mackie has suggested that there is a very real need for a
registration system that offers a public information directory of organisations
stating that they commit to good practice as set out in Codes developed by its
members (which should emphasise flexibility of mediation practice rather than
one model); an independent complaints review process; and for public bodies to
be encouraged to use CMC Registered providers for these reasons. 

With the emergence of a truly global
business world, there are inevitably more and more cross border
mediations.  This obviously brings
about another debate on regulation and standards as different cultures require
different models of good practice. 

Organisations such as the International
Mediation Institute, established a few years ago are seeking to create common
standards of practice across borders.   We can only continue to have the
debate and hope that common sense prevails in maintaining high standards across
borders without the need for restrictive definitions.

Another significant development in the
regulatory debate is the publication earlier this year of the European
Directive on mediation in civil and commercial matters (albeit restricted to
cross border mediation).  

Within it, mediation is defined as:

‘A structured process, however named or referred to, whereby two
or more parties to a dispute attempt by themselves, on a voluntary basis, to
reach an agreement on the settlement of their dispute with the assistance of a
mediator. This process may be initiated by the parties or suggested or ordered
by a court or prescribed by the law of a member state.’

At the start of the consultation process
the Directive sought to be quite prescriptive in the implementation of common
standards, formal registration schemes and a much tighter regulatory
environment.   However during
the consultation period it became clear that there was little support for this
and the published Directive provides that quality standards for mediators and
mediation providers are dealt with by requiring Member States to ensure that
voluntary codes of conduct are published and adopted, and that mediation
training standards are encouraged.[13]

Given that the UK has some of
the most stringent training standards, codes of practice and highly skilled
mediators, and that it has done this largely through organic development under
a self-regulatory environment, the EU Directive’s reluctance to impose a
formal registration scheme is to be welcomed.

[A version of this article first appeared
in Nederlands Vlaams Tijdschrift voor Mediation en Conflictmanagement in December 2008]