Welcome to our September newsletter, with an update on several issues. We hope you’ve had a really nice summer (despite the weather) and that you’re raring to go on cases? We had a flurry of referrals in the first week of September, but this has died down a bit now as we’re getting mediators matched and out visiting clients. Jackie Minter has just flown out to Australia to visit her daughter for a couple of weeks, and we warmly welcome Sarah as the caseworker who will be running the office and cases. More about Sarah shortly………..
Other items this month are;
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Sarah Mack has joined the team!
We’re very pleased to welcome Sarah, who has replaced Jacqui van Loen as the second caseworker. As you know, Jackie is away and will return on 5th October, so Sarah and I are managing the office in her absence – please bear with us. Sarah has written a few words about herself below;
My background stems primarily from creative industries, having
worked as a designer, art director, photographic re-toucher and most
recently as a personal assistant to a leading British Sculptor.
Clear and cohesive communication has played a large part in my
career and my desire to work within the mediation sector stems from a
desire that the individual can feel free to express their opinion and
point of view openly and without prejudice.
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Action Learning Sets
Please note that we have Sets starting this week, and some mediators have not yet signed up to attend. The office has e-mailed everyone so do check which date and time suit you best and let us know. Many thanks.
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Mediation Hertfordshire’s AGM
The date of this year’s annual meeting is Tuesday 20th October at 7pm. We have brought the date forward from January because of our regulator’s requirement that we hold it within 7 months of the financial year end.
The meeting will be dealing with last year’s accounts and report, and will also be looking forward to how we want the service to grow and develop over the next 3 years. We really need mediators’ input into these discussions so please put the date in your diaries and further details of venue and programme will be circulated in early October.
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Workplace Mediation – an update
Martin Harrington has been working hard to research the possibility of our service offering workplace mediation, particularly to the public and voluntary sectors within Hertfordshire. The Board has also been discussing whether this is an area we would like to develop as a way of raising revenue, as we move into a much more uncertain time in relation to local authority and grant funding. These moves will be part of the discussions at the October AGM, so please make a point of attending and airing your views.
Final decisions have not yet been made as to whether the service will go ahead with this, as more information is still being gathered. Initial conclusions are that it could be a positive development, but that we would need to start small and develop our offer as we grew in experience and expertise.
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Alternative Dispute Resolution Bulletin – an excerpt
Mediation will save the world
In 1996 Lord Woolf’s Access to Justice report was published. In it, he argued strongly that litigation should be a last resort. The nascent mediation lobby had an evangelical enthusiasm for the benefits of mediation, claiming that it transformed relationships, enhanced communication and offered win/win solutions. This faith came to be shared by courts, judges and government, though it was based on little empirical evidence. It seemed self-evident that it was better for people to be empowered to resolve their own problems – it was a bonus if it meant savings in the courts and legal aid budget as well.
Litigants being like horses…
But this enthusiasm did not seem to be shared by the public. Judges at Central London County Court (CLCC) had set up a pilot mediation scheme in 1996, but in the early years fewer than 5% of litigants chose to use mediation, despite heavy promotion by the court. Initially it was thought that what was needed was information: if only people knew about mediation they would inevitably use it to resolve their disputes, avoiding the lengthy, expensive, stressful litigation process. So information was provided. The LSC leaflet number 23, ‘Alternatives to Court’, was published, the National Mediation Helpline was established, and ASA was funded to train advisers in understanding ADR issues, and to set up the national ADRnow website. But still very few people chose to use mediation.
At the same time, a number of initiatives were begun to persuade litigants that
mediation was good for them. The civil procedure rules were changed in 2000 to give courts more of a say in how cases were conducted, and to penalise parties on costs if they ‘unreasonably’ refused mediation. A series of court cases nudged disputants further towards compulsory mediation. Either you couldn’t go to court or you had to pay the loser’s costs if you wouldn’t mediate. Fewer and fewer excuses were accepted by the courts – they were not convinced by pleas of a watertight case, or the need to establish a legal precedent. It was presumed that refusing mediation was automatically unreasonable. Then in 2004, the Halsey case called a halt, and established that refusing access to the courts was contrary to justice, and a possible violation of article 6 of the European Convention on Human Rights. It was up to the loser to demonstrate that the winner had been unreasonable in turning down mediation. And it was re-affirmed that the choice about how best to resolve a dispute belonged with litigants: the civil justice process should be there for them if that was what they wanted or needed.
As an example, the National Mediation Helpline was set up in November 2004, funded by the government. It was evaluated after 6 months by the Telephone Helpline Association. During that time, around 1600 callers had contacted the service for information about mediation, around 500 were referred to one of the six listed mediation providers, but the THA researcher was only able to identify and contact 5
who had actually gone ahead with a mediation.
There has been some evidence to indicate why this is the case. For instance, research into mediation in family disputes published in 2004 demonstrated that only 25% of couples using mediation managed to resolve all the issues in dispute, and fewer than half of users were satisfied with the mediation process itself. And a small research project by Shelley Day Sclater published in 1999 showed that the face-to-face mediation process felt more psychologically stressful for couples than a court hearing where they were represented by a solicitor.
Halsey has not been overturned in the courts. However, some judges clearly still think that they know what’s best for the court user, and wish they could force them to mediate. For example, in May last year the Master of the Rolls, Sir Anthony Clarke,
criticised the Halsey judgment at the Civil Mediation Council conference, and proposed that litigants (being like horses) should be forcibly led to water, where they are then more likely to drink.
Quicker, cheaper, better?
During my eight years at ASA there has been a steady drip of published research
about mediation, and the results have not backed up the assumptions about its
benefits. For example, research over ten years at CLCC found that the more users felt pressurised into mediation, the less likely they were to reach agreement that way. And although successful mediations were quicker and cheaper than a court hearing, where mediation was unsuccessful litigants found that costs were higher and the whole process took longer. In 2004, fewer than half of mediations were successful.
An idea that failed?
As I write this in August 2009, government enthusiasm for civil mediation seems to
have waned. While the 2004 LSC consultation paper was titled ‘A new focus for civil
legal aid – encouraging early resolution; discouraging unnecessary litigation’, the
recently published LSC strategic plan for 2009-12 makes no mention at all of ADR,
mediation, or proportionate dispute resolution. But another initiative to promote family mediation is being piloted this summer, outlined on page 18 of the August Focus newsletter. Attending mediation information desks to learn about the ‘benefits’ of family mediation will be compulsory for separating couples going to court. This is the third time I have encountered such a scheme since I began working in family mediation in 1991 – none has been successful in persuading more than around 20% of couples to try this method of dispute resolution. Family mediation has remained a minority choice.
My personal belief is that voluntary mediation has something to offer in conflicts which involve strong feelings, and where the ongoing relationship between the disputing parties could benefit from better communication. This includes disputes between separating couples, warring neighbours, parents and schools, disabled people and pubs, shops and banks. Some of these areas are already funded by the government through the LSC, Local Education Authorities, or the Equalities and Human Rights Commission. It would be good to see government support and resources for community mediation, where there are few affordable or effective legal options.
But mediation brings with it a significant disadvantage – it may not be able to redress the power imbalance between two parties. When it comes to enforcing the performance of statutory duties by reluctant local authorities, or restraining violent partners, or preventing racial harassment, the stronger party may simply refuse to mediate, or use the process to perpetuate intimidation. In such cases, access to the court process is essential.
Thanks to Halsey, we have come full circle: the decision about which dispute resolution option is most appropriate is now back with litigants and their advisers. Will this continue, or will judges and mediators succeed in their desire to persuade disputants that they know what’s best for them? Will policy-makers re-discover their enthusiasm for ‘proportionate dispute resolution’ when more money needs to be shaved from the civil legal aid budget? Who will take responsibility for remaining vigilant on these issues?
First principles
The key issue, in the view of ASA, is informed decision-making. Where there are
options, people need to have enough information to decide which route will be best for them, and they need independent advice to help them understand and weigh up the choices they face and their possible outcomes. The bottom line is that we all need to have access to independent courts in order to protect our rights, and to enforce public duties and private behaviour. This is not necessarily the cheapest policy, but it is one that best serves the interests of justice.
Val Reid, ADR Policy Officer, ASA
August 2009
The full text of this article can be accessed on the ADR website at www.asauk.org.uk
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Schools Mediation and Peer Mediation
The new school term is already seeing some cases referred to the Schools Mediation service. The service is now county-wide across the whole of Hertfordshire so we expect a higher level of cases over the coming year. If you have any opportunities for publicising this work (whether as a governor or in other contexts) please let the office know. We will shortly be producing a new and updated leaflet, and these can be sent to you for distribution.
We had some fantastic news about our peer mediation project in August. Herts County Council have agreed to fund us at a higher level than ever before, and we have just appointed a Project Worker, Jan de Vyott, to take this work forward. Jan will initially be working in the Watford area to develop our training and involve more schools, but would be interested to hear from any of you about schools which may benefit from having young people trained in mediation skills.
There will be regular updates as the project unfolds, so watch this space……
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And please let us have your feedback and views, particularly if you would like to contribute to next month’s newsletter.
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