Alternatives to the courts - mediation and conciliation

Mediation and conciliation
Mediation	ADR – alternative dispute resolution – is a key element in the reforms to the civil justice system introduced in 1999, mediation holds centre stage in ADR.
Courts encourage ADR before action	The practice direction for pre-action protocols has been amended from 6th April 2006 to reinforce the principle that parties must think about ADR before taking a case to court. Courts increasingly take the view that litigation is a last resort, and that claims should not be issued if a settlement is still possible. Parties may be required by the court to provide evidence that alternative means of dispute resolution were considered. The court can apply cost penalties if parties have not done this. The practice direction makes it clear that it is impractical to give detailed directions on how to resolve disputes, but suggests three key options: discussion and negotiation early neutral evaluation mediation It adds that it is “expressly recognised that no party can or should be forced to mediate or enter into any form of ADR.”
Mediation is increasingly an integral part of the court system	Mediation is where a 3^rd person acts a "go between" and negotiates in an attempt to reach a common resolution between the parties. It is increasingly being seen as compulsory. Not only is mediation used to resolve civil proceedings, but also it is being widely used to resolve neighbourhood disputes. Children in primary schools as young as 10 have even been trained to be peer mediators to help others untangle their playground quarrels. Mediation UK is a voluntary body which attempts to use mediation to resolve local disputes.
Compulsory mediation in the Family Court	The Constitutional Affairs select committee in a report published in June 2006 said that the Family Resolutions Pilot Project had been a ‘failure' in diverting parents away from the courts; because mediation was not compulsory. They said that there should be a compulsory preliminary meeting with a mediator. Those seeking legal aid are expected to use mediation but privately funded couples are not. The committee took evidence from the President, Sir Mark Potter and other senior judges and officials.
Early neutral evaluation	Prior to court action parties can make use of early neutral evaluation (ENE). An independent third party considers the claims made by each side and gives an opinion - either on the likely outcome or on a particular point of law. The opinion is non-binding; the parties can use it if they wish in considering how they want to proceed with their case. The opinion can be the basis for settlement. ENE can help to narrow the issues and focus the parties' minds on realistic outcomes by giving them an objective view of their arguments. Often the evaluator has been chosen because of his or her expertise in the subject matter of the dispute, but just as often the evaluator is a lawyer with litigation experience. This experience can be particularly valuable when the purpose of using ENE is to get an opinion on a point of law or to get a more realistic view of the chances of success at trial.
Works to obtain a mutually acceptable agreement between the parties	Mediation has emerged in the nineties as an increasingly popular form of dispute resolution. Like conciliation, it involves a third party who is neutral working with the parties to a dispute to facilitate their negotiations more effectively so that they can arrive at a mutually acceptable settlement. The mediator will assist the parties in exploring options and measuring the strengths and weaknesses of their respective cases.
Definition of mediation	Mediation is an indeterminate concept because it can have different meanings depending upon the context in which it is used and on whether the emphasis is put on the process or the outcome. There is no rigid definition of mediation and no rigid method of conducting it. This is because the characteristics of mediation may also describe other alternative dispute resolution processes, such as conciliation or arbitration.
Mediation saves time, costs and emotional strain	Mediation can save time and reduce the cost of resolving a dispute, both financial and emotional. Mediation can also assist the parties to re-establish trust and respect and can help prevent damage to ongoing relationships. Mediation works best when it is voluntary, although there are some examples of mandatory mediation projects where parties to a dispute are required to go through a mediation process as a prerequisite to being able to seek adjudication of a dispute by a judge or an arbitrator.
Arguably the single most important change in the litigation landscape during the past decade	The use of mediation has increased dramatically and the process itself has rapidly evolved. Parties can now choose from a wide selection of mediators and areas of specialisation. Mediation is used to resolve discrete parts of a dispute and ever more imaginative and flexible solutions are being created to bring legal proceedings to an early conclusion. Cost penalties can be levied against parties that unreasonably refuse to mediate.
National mediation helpline, mediation provided by the Department of Constitutional affairs	To divert court action, the national mediation helpline (0845 60 30 809) provides civil court users in England and Wales with information and advice on mediation. If appropriate the helpline will refer the matter to one of the 6 national providers who are supporting this scheme. The helpline provides court users and the general public with access to information about mediation, and if requested can make the necessary arrangements for a mediation appointment. Some courts have their own mediation schemes which will continue. There is also a website which provides customers with information about mediation, frequently asked questions, a list of court based and associated schemes, and information on costs. Customers can complete a form online if they wish, which will automatically go to the providers for action.
Dunnett v Railtrack (2002) CA	The case concerned damage caused when horses strayed on to a railway line. It is widely considered to constitute much-needed ammunition for those parties involved in litigation who were genuinely trying to negotiate a settlement rather than end up at trial. Held: The principle was established that an adverse costs order could be made against a successful party if that party had refused to mediate.
Criticism of Dunnett	The decision put pressure on parties to attend (and pay for) mediation whether they wanted to or not, and this risked compromise being encouraged rather than justice. In Dunnett, the party that was penalised was Railtrack who had turned down the offer of mediation after it had been specifically suggested by the court. Consequently, Railtrack was deemed to have failed to assist the court in furthering the overriding objective in accordance with the Civil Procedure Rules (CPR 1.3).
Hurst v Leeming [2002] Ch Div	The Dunnett principle was substantially broadened when Mr Justice Lightman set out when an action was suitable for mediation and gave examples of circumstances in which a court would be likely to hold that a refusal to mediate would be unacceptable. D, Mr Leeming a barrister was sued for professional negligence by Mr Hurst, a solicitor. The claim was dismissed and Leeming applied for his costs, but Hurst argued that Leeming should not be awarded his costs because he had refused to mediate. Leeming won, but only because of the particular "character and attitude" of Hurst. Held: Examples of circumstances in which a rejection of mediation would be acceptable, included the scenario of a party being faced with a delusional or patently unreasonable opponent, or one who had nothing to lose by going to mediation because he was bankrupt. Lightman J, made it clear that this case was exceptional and it would, for example, no longer be satisfactory to refuse to mediate by arguing that large costs had already been incurred or that the allegations being made were serious. Of more concern was the fact that it was expressly stated by the judge that the strength of a party's case was not necessarily a good enough reason not to mediate. "The fact that a party believes that he has a watertight case is no justification for refusing mediation," he said.
Mediation; automatic referral, pilot scheme	As from 1st April 2004, Central London Civil Justice Centre has housed a scheme which involves automatically referring selected civil cases to mediation. This has been successfully copied in many other courts. Parties are liable for costs if they still decline to mediate when their reasons to opt out of the scheme do not satisfy a judge. If one or both of the parties object to mediation they would need to give their reasons. The case will be referred to a District Judge who will decide whether mediation should take place or whether the case should proceed. If one of the parties still declines to mediate, even though their reasons do not satisfy the judge, they risk being liable to costs under existing case law and Civil Procedure Rule 44.5. If mediation is successful, the court will draw up a copy of the agreement reached, send copies to the parties and retain a copy on file. The agreement will be binding on both parties If mediation is unsuccessful or only partially successful the parties will be free to continue with court proceedings. The court will allocate the case to the fast or multi-track or order parties to complete an allocation questionnaire.
Wyatt v Maxwell Batley (2002) Ch Div	A party that refused to mediate because its opponent had tried to bully it into mediation won. A party that succeeds at trial but refused mediation because of the strength of its case, may well face costs sanctions against it.
Cable & Wireless plc v IBM United Kingdom Ltd [2002] QBD	The court considered mediation could be ordered when a contract between the two parties contained clauses for such a method of resolution. Interestingly, the court took the view that CPR 1.4(2)(e) added weight to the compulsory nature of ADR, to do otherwise would fly in the face of public policy as expressed in the Civil Procedure Rules. As it happens, the mediation failed in this case.
Claimants do not normally issue proceedings wanting to recover a proportion of their claim; they want it all because that is what they consider they are entitled to	It is possible for a claimant to obtain the whole of their claim and costs, but more frequently, the result achieved is a 'halfway-house plus a bit'. The successful party may well feel that they have been short-changed by the system. This will be more firmly felt if they feel they were unduly pressurised into mediation and little attention has been paid to the evidence. Cases that settle as a result of mediation is an impressive 80 per cent.
We are heading to a position where mediation is obligatory	Parties sometimes go to mediation, not to settle, but to protect themselves from adverse costs penalties. The court cannot look into what actually happens at the mediation due to its "without-prejudice" nature. It is thought that the success of mediation will decline as parties treat it simply as another step in the action, failing to prepare or attending with no intention to compromise. Mediation has succeeded as a form of alternative, not compulsory, dispute resolution.
Research	Selected research and cases available from the Civil Justice Council here here.
"Halsey guidelines"	In the case of Halsey v Milton Keynes General NHS Trust and Steel v Joy and Halliday [2004] CA the Court of Appeal gave guidelines on when mediation should take place, but stopped short of making it compulsory. They said that compulsory ADR orders will not be made as to do so would make a voluntary process involuntary. The Court took the view that making mediation compulsory could breach a person's Human Rights Convention Article 6 right to a fair trial. The Court, however, made it clear that there was a duty on every lawyer to advise clients on mediation. Another important feature of the judgment is that if the winning side had refused to mediate, the onus is on the losing side to prove that the refusniks had acted unreasonably if they are to avoid paying the winner's costs.
Family and the role of mediation
Mediation in divorce	Mediation plays an important part in family matters and aids the splitting couple to ‘come up’ with a settlement rather than having one imposed by the courts.
Family Mediation is probably the most widely practised form of mediation in the UK	Early attempts at Family Mediation actively encouraged ADR in separation and divorce cases, but attempts at reconciliation were not a success. Nevertheless, it emphasised the importance of mediation. Mediation in divorce and separation cases is now provided by mediators who might also be lawyers. It covers almost all areas of dispute including children and finance.
Family Law Act 1996 (s 13) strengthened the emphasis on mediation	Although most of the provisions of the Family Law Act 1996 have never been implemented, one effect has been to place mediation on the same level as courts as a forum for resolving divorce and separation disputes. A benefit of mediation is its potential to decrease the adversarial nature of these disputes and to produce longer lasting agreement. Since 1998, couples who want to apply for Legal Aid must first attend a meeting with a mediator to discuss whether mediation is suitable for the parties, the dispute and all the circumstances. However the government - lobbied by mediation providers themselves - stopped short of making attendance at mediation compulsory. One of the criteria on which mediators can base an assessment of suitability is whether both parties are willing to mediate. If one is not, mediation is not suitable. The "stronger" party can however manipulate the mediation process. Sometimes establishing entitlements based on clear legal advice is the best way. Mediation has its place in family proceedings involving children, and was used in C v C (2003) CA. Where children are involved, mediation must also take account of the requirements of the Children Act 1989, which makes the welfare of the child paramount.
Financial Dispute Resolution (FDR)	The Family Proceedings (Amendment No. 2) Rules 1999 amend the Family Proceedings Rules 1991 (there have been several other amendments up to 2003). Couples wanting a divorce need to resolve financial matters which include distribution of assets (including pensions) and maintenance, Financial Dispute Resolution (FDR) is compulsory part of obtaining a divorce settlement. FDR agreements are binding on the parties, as discovered by the husband in a £3.5 settlement in Rose v Rose [2003] CA.
Two features of FDR	The Family Proceedings (Amendment No. 2) Rules 1999 introduced, from June 2000, an additional stage into court proceedings. At its heart are two fundamental features: Form E, a standardised financial statement to be completed by both parties in every case. This increases the likelihood of giving full disclosure early on and therefore increases the likelihood of settlement. A financial dispute resolution (FDR) hearing with the judge in the case. Both parties must attend in person (i.e. they cannot send their representatives in their place). The judge is made aware of offers of settlement made by each side, and of any previous attempts to produce an agreed settlement. At least 50% of all cases settle at or shortly after this hearing. However, as the parties have already gone quite a long way through the court process by the time of the FDR hearing, if this fails to resolve matters the only option is usually a final hearing.
Alone in London an organisation for young people Website here	The service deals with disputes between young people and their families. Among the issues it can help with are: disputes about a young person leaving or being kicked out of the family home leaving home in a planned way restoring communication behaviour within the home intra-family conflict
Mediation in Europe
EU Directive	The EU Commission has suggested harmonising mediation across Europe but this has had a hesitant start. The proposals take key parts of a voluntary process and make them compulsory. After lengthy consultation, a draft directive finally emerged in 2004, the proposals were modest. There was nothing about the mediation process itself or about the appointment or accreditation of mediators. As a step forward in harmonisation across frontiers it remains very much "work in progress". Current EU procedures are explained in detail here
Conciliation
A form of mediation where rights are enforced	Basically takes mediation a step further and gives the mediator power to suggest grounds for compromise and a possible basis for a conclusive agreement, (unfortunately, the term "conciliation" is often used interchangeably with "mediation") Conciliation is an assertive, rights-focussed process that fundamentally aims to enable the complainant to exercise his or her rights in law. A conciliator will take a more active role in making suggestions or advising on the best way to resolve the dispute. It is used in disputes about access for disabled people to goods and services. It aims to secure a resolution in response to a particular incident of alleged discrimination which is satisfactory to the complainant. If an acceptable resolution is not found, or if a provider refuses to become involved in the conciliation process, then the complainant still has access to the courts to enforce their rights. In some conciliation procedures (such as ACAS conciliation in employment disputes) the parties do not meet, but the conciliator works with them separately, usually over the telephone. In others (such as the Disability Conciliation Service) the parties usually meet face-to-face for the conciliation process. Conciliation also has overlaps with negotiation, but unlike negotiation, where the third party acts as an advocate for one side, in conciliation the third party is impartial and does not take sides.
Conciliation in employment cases	Conciliation is an established feature of industrial relations. The conciliator brings the parties together and acts as a facilitator in their discussions. The conciliator is not a decision-maker. Where an industrial issue is involved the Advisory Conciliation and Arbitration Service (ACAS) tries to resolve disputes through discussion and negotiation. It is of more than passing interest to note the order of the words in the title ACAS Advisory Conciliation and Arbitration Service for it is in that order that their officers attempt to resolve disputes.
Employment cases	All employment claims go first to ACAS who attempt a resolution before a tribunal date is set, this is a very effective procedure and matters are often resolved at this early stage.
Seven reasons why employment disputes are suitable for mediation	First, many parties have a continuing relationship. If the employee is still in employment the litigation process can be immensely stressful and destructive to the relationship. Matters slide inexorably towards claims of victimisation and unfair dismissal. Second, the best solution may be to address the management or organisational issues, rather than dealing with the particular historic complaint. Third, mediation offers some prospect of better understanding each other’s respective positions. Fourth, mediation might provide an outlet for all the strong feelings about the case which can be a crucial step towards settlement. Often all that is needed is for the employer to accept there is a problem and to apologise. Fifth, there is no such thing as a ‘risk free claim’, or ‘cast iron defence’ employment tribunals are unpredictable at best. Sixth, confidentiality is an obvious benefit to the employer although employee will often take a contrary view. Finally, speed in which a solution can be found can be a virtue of mediation. Even complicated problems can be resolved within short deadlines.
Conciliation in The Family Division	Conciliation in respect of children’s’ residence, contact, specific issue or prohibited steps orders, change of surname (and a few others) is subject to a conciliation procedure. A meeting comprises the district judge, an officer of the Children and Family Court Advisory and Support Service (CAFCASS), both parties and legal advisers, and affected children. The purpose of the meeting is for the parties to reach an agreement.