THE NEED FOR A SURVEY
Mediation providers have from time to produced figures for the total numbers of mediations carried out by them nationally. That produces some national trends that indicate that the total volumes of mediations are increasing at a high proportionate rate from admittedly a fairly low threshold. We also had the initial report of Professor Hazel Genn of progress with the Central London County Court Pilot Mediation Scheme and the Court of Appeal statistics, which once again showed quite a low take up given the total numbers of potential cases that could have been mediated. The latter showed a take up rate of under 5% of the 250 cases monitored between November 1998 and March 2000. What we did not have from the variety of statistics was raw data showing where mediations were coming from, namely from:-
This paper summarises the results of a survey we conducted earlier this year, and provides insights into the possible development of Court sponsored Mediation Schemes.
THE ANM SURVEY
We asked a number of questions to members of the Association of Northern Mediators and other civil and commercial Mediators in the North of England who were trained either by the ADR Group, the Academy of Experts or CEDR. Whilst the individual detail of the survey was confidential, the conclusions of the survey show important pointers as to how mediation is developing. The survey contrasted mediation activity in the first and second halves of last year, ie. the year ending December 2000. The total number of mediations monitored were 214, split as to 90 in the first half of last year and 124 in the second half. The raw details showed a significant increase in the total numbers of mediations that is broadly in line with national trends. However, the detail shows some more interesting developments.
WHO APPOINTS THE MEDIATORS?
Here the most significant finding is the correlation between appointments by the providers and direct appointments by the parties. It was recognised that appointments under Court Schemes would be very limited, and we refer to these below. It was recognised that the better Mediators became known and the more accessible the Mediator details became, there would be a tendency for parties to appoint Mediators directly in the same way as Arbitrators or Adjudicators are appointed directly. The results between the first and second halves of last year broadly indicate that appointments made by agreement are still very much in the majority.
|First Half 2000||Second Half 2000|
ADR, AE and CEDR 62
Court Schemes 2
ADR, AE and CEDR 85
Court Schemes 8
The above indicates that by far and away most appointments are still made by providers by the parties involved in the dispute requesting a Mediator to be appointed. Whilst it was not the purpose of the questionnaire to seek an analysis of which of the main providers was doing more appointing than the others, the results showed that CEDR’s appointments were marginally ahead of the ADR Group, and the numbers of appointments from the Academy of Experts were very small. Of perhaps more significance, is the very low impact that private Mediation Schemes have had on the total number of appointments. A search of the very considerable numbers of private providers’ web sites shows a dramatic increase in the numbers of those providers. Take for example the Centre for Business Arbitration in London, Consensus and In Place of Strife. Whilst none of these organisations are based in the North, it appears that these and the other private providers have had a very low impact at least on those mediations reported. We found most of the other appointments had been made via the professional organisations, and in particular the RIBA and the RICS. The numbers of national appointments from the RICS for instance have gone up by 700% between 1999 and 2000 from 1 to 7. We can expect that trend to continue. It remains to be seen whether other professional providers such as the Chartered Institute of Arbitrators will remain as significant appointors or whether they will remain as “also rans”.
The total numbers of agreed appointments remained fairly stable between the two halves of last year. If you analysed these appointments 20 out of 24 were appointments to lawyers in the first half, and 21 out of 26 appointments in the second half. This does indicate that lawyers tend to be appointed in more than 80% of the occasions where direct appointments are made. In those disputes where non-lawyers were appointed most were construction related, indicating that that those involved in construction disputes appear more likely to appoint technical Mediators than in other disputes. Thus Mediators bringing other skills such as accountants and medical experts may be perceived as having too narrow an approach, or alternatively an insufficient grasp of the niceties of litigation to have substantial opportunities of being appointed directly. It is important to appreciate that out of 214 mediations monitored, 142 stem from existing litigation. This begs the question as to how likely it is that a lawyer will agree to the appointment of non-lawyers to mediate. The ADR Group who are virtually all lawyers positively encourage it. Perhaps it also indicates the very different approach taken by construction lawyers who feel less prone to appoint other lawyers to mediate, although it has to be said that the survey did not break appointments into categories of disputes.
As to who did how many mediations, the detail is confidential. Appointments from the main providers were not as widely spread as we would have anticipated. There were only 6 Mediators who had done 10 or more mediations. The majority of Mediators, which included many who were recently accredited, showed an extremely low level of mediation activity. Given the demand for mediation is relatively low, the supply of Mediators is very much greater than the numbers of mediations currently available. Increases of mediation activity may change this; but it must be said that the greatest prospect for spreading the benefits of mediation appointments to a wider bracket of Mediators may be with the creation of inclusive Court Schemes, rather than the more exclusive appointment policy of the providers.
It must be recognised that any assessment of Court Schemes outside the Central London County Court Pilot Scheme is going to be premature to say the least. The Pilot Scheme based on the Leeds Combined Court Centre was given permission to commence on an evaluative basis by the Lord Chancellor’s Department in July last year. It is a passive Scheme with no central funding. It allows for Scheme details and the Mediation Agreement to be circulated with the Allocation Questionnaire. Appointments are carried out by the Law Society from its rota of ANM members, to include both lawyers and non-lawyers who then charge on a scale fee basis ranging from £125.00 to £500.00 per party. Given that the Scheme is being evaluated by Leeds Metropolitan University, this paper really only gives a pointer to the future. There were only about 8 appointments in the first 6 months of the Scheme to the end of last year, with a significant increase on that extremely low level in the first 3 months of this year. A similar Scheme was started in Manchester in February this year, administered by the Manchester Law Society. Here instead of a single panel there are separate panels for commercial and non-commercial disputes. Virtually all the appointments so far have been with the commercial panel. Full details of both Schemes can be found on the ANM web site on www.northernmediators.co.uk.
It is not really the purpose of this article to draw any conclusion on the very limited detail available, particularly as the CLCC report of Hazel Genn was based on a far longer assessment period. However, it must be said that future Court Schemes are likely to develop on the back of local initiatives such as those in Leeds and Manchester. Key indicators for Court Schemes may be:-
From the above pointers one of the inevitable problem areas will be whether the Government, the Law Society and other interested bodies will require all Mediators to be trained to acceptable minimal standards and as to what those standards will be to warrant their going onto a panel of Mediators in any Court Scheme. Currently ANM and other regional organisations accept that registered or panel status is achieved once the Mediator has been accepted as a Lead Mediator by whosoever trained them. The lack of national standards nevertheless remains a difficult area.
It is easy to put a gloss on mediation activity by putting it in percentage terms such as in our poll there was a 30% growth in the numbers of mediations between the first and second halves of last year. It may be that mediation numbers go up enormously in the next year in percentage terms. However, the threshold still remains dismally low given the numbers of cases where mediation was presented as an option to the parties. This survey indicates that mediation is very much alive and kicking in the North of England in terms of numbers, comparing well for instance with the probable appointments of Arbitrators. Those trained as Mediators should adopt the role of zealots for mediation without expecting the immediate benefits of appointments. There is clearly a long way to go yet, and we would like to see a 2001 survey give a very much more positive note to mediation than statistics alone provide.
This article first appeared in 20 The Practical Litigator 5 (January 2009) and appears here with permission. Sometimes there is no acceptable compromise. The litigants’ positions are irreconcilable. It is...By Stuart M. Israel