Ann Brady looks at the Manchester court mediation scheme and says plans to roll it out raises issues of concern


As someone who has been a court mediator for the past five years, undertaking small-claims, fast-track and multi-track court-level cases, I welcome the attention drawn in the Gazette to the concerns being raised 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 (see [2007] Gazette, 19 July, 3).



The article quite rightly points out that 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 that the scheme has not been as stringently researched as other court schemes, such as Exeter and Guildford courts and the London County Court scheme. Furthermore, his 'success rate' - that is, the number of cases that he has settled - has not been matched at other courts where similar schemes are being piloted, for example in Bristol.



Apart from success rates and customer satisfaction, the Manchester model raises a number of issues that need to be addressed. 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. The second is whether it is appropriate for a government department, responsible for the administration and financial control of the courts, to be advertising and using its own staff to undertake cases which would otherwise have been handled by a judge.



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 can act as mediators, but not in cases assigned to them for interlocutory application or trial, finished on 31 July and is now to be evaluated, but at other civil courts - such as Bournemouth and Swindon - a few judges are starting to mediate small claims.



The idea of using judges as mediators is not new. Writing recently in the International Journal of Arbitration, Mediation and Dispute Management, Sir Brian Neill observed: '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.'



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 schemes, such as the Devon & Exeter Law Society court scheme, but also newer ideas, such as using judges as mediators.



An evolving world

The practice of mediation has changed over the last 15 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 - and it is family and commercial mediators who tend to be involved in court schemes.



Within the court system, there are a number of mediation schemes in operation; outside this system, there are countless mediators and mediation organisations offering their services to the public on a voluntary or fee-paying basis. Law firms and barristers' chambers also offer mediation services.



Using mediation within the legal system, apart from its known benefits, is clearly a cost-cutting exercise. Globally, this is not unusual - many countries face the problems of delay in the civil litigation process and spiralling costs to the public purse. For example, Legal Services Commission statistics indicate that nearly 800,000 cases of civil legal help were funded by legal aid over the last year, up 12.5%. However, despite these admirable increases, those of us who regularly undertake non-family small-claims mediations in the county court know that many parties 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.



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) is the designated court mediation scheme, the leaflets for this scheme are normally sited beside the ones 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. Judges make the decision to hand cases over for mediation based on Court of Appeal guidelines (see Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576). 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 worked on 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 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 parties.



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.



So the question 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-mediators - such as those in the Devon scheme - 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 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.



While techniques such as telephone mediation are common 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 12 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.



A national view

These issues are also relevant to the 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 20 mediation organisations, both commercial and voluntary.



Parties, in general, have to pay for the service, although 'in some circumstances, mediation might even be free', according to the NHM leaflet (but no further details are given). The mediation providers arrange accommodation, and success is defined as the parties reaching agreement through mediation and client satisfaction indicated on the questionnaires parties compete.



To qualify to be on the rota of the NMH scheme, providers have to be accredited by the Civil Mediation Council (CMC).



The CMC would argue that it has laid down fairly stringent tests for mediation providers in relation to the initial training of mediators and their continuing professional development. However, with a rota of so many mediation organisations (which in turn have numerous mediators on their lists) and no central control, it is difficult to oversee how mediations are being conducted. Mediators come from a range of backgrounds, including those with no legal training. The CMC does not take responsibility for the conduct or performance of individual mediators and, as Sir Brian put it, 'if the courts encourage and indeed recommend mediation, the judges must have confidence in the quality of the mediators who will undertake the task'. He added: 'This is not an ideal scheme because it is the individual mediator whose competence is in issue.'



The NMH scheme has not as yet been as stringently evaluated as some other court schemes, 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, Tony Willis, has pointed out, 'we do not have any comprehensive statistics showing the total number of mediations conducted in England and Wales every year'.



Gaining acceptance

Court mediation is step by step gaining acceptance by members of the public, by the legal profession and by judges. Both the Exeter scheme, using deputy district judges as well as barristers and solicitors as mediators, and the pilot Technology and Construction Court scheme 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 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 chairman of the Civil Justice Council's ADR committee. The minutes of this workshop record the views of those present that the Department for Constitutional Affairs (as was) should not expect to get mediation 'on the cheap'. It was further recorded that one type of mediation scheme might not suit all courts.



The task confronting the Ministry of Justice's better dispute resolution team is to find an appropriate and efficient method of delivering a national court mediation service, while keeping an eye on the 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 NMH, which have yet to be rigorously tested.



Dr Ann Brady is a barrister and mediator at Rougemont Chambers in Exeter. She has been involved in the Devon & Exeter Law Society court scheme since its inception in 2002