Congratulations to Sir Henry Brooke Chairman of Trust Mediation who collected a Lifetime Achievement Award and the Mediation Achiever of the Year Award at the 2011 Personal Injury Awards.

As one of the Trust Mediation panel mediators I am privileged to work with Sir Henry from time to time. I had the opportunity to observe him in action last year in a four defendant multi-track personal injury case which he helped the parties resolve. As with most multi-defendant actions there were mediations within the mediation which Sir Henry handled expertly.

The comedian Stewart Francis hosted the event which is incentive enough to make me pull my finger out and get nominated next year. Here’s Stewart in action:

legalweek.com has reported that the Ministry of Justice is adding another £10 million pounds into its 2012 budget for publicly funded mediation taking the total to £24 million for the year. The report says:

An MoJ spokesperson said: “Research shows that mediation can cost a quarter of the price and take a quarter of the time of going to court.

“Data from legal aid cases show the average cost per client is £535 compared to £2,823, and that the average time for a mediated case to be completed is 110 days compared to 435 days for non-mediated cases. With two thirds of publicly funded mediation already resulting in full agreement, it can ensure better results for families too.”

I wonder if some of the money is to be used funding of the expansion of the free small claims scheme for civil cases. The scheme is currently optional and has a very high success and user satisfaction rating. These factors were presumably influential on the government because it has proposed making referral to the scheme compulsory for small claims in it’s consultation paper Resolving Disputes in the County Court. Another proposal in the same report is to increase the limit for small claims (currently at £1,000 for personal injury cases and £5,000 for other civil cases).

If these two proposals are adopted then obviously the workload of the small claims mediators will go up exponentially. The scheme is fully funded by HMCS so it will need more money to deal with the new cases.

It is not clear if the government intends to expand the HMCS service to cope with the demand or employ private sector mediation providers to fill the void. It is also not known if there will be any fee charged to litigants for the service which is currently free at the point of delivery.

I will of course report as soon as the MoJ publishes its response to the consultation when we should have  better idea of how this will all pan out.

Mr Justice Ramsey has suggested that mediation could be an appropriate way to deal with minor criminal offences as well as complex white-collar crime. He spoke recently at the CIArb’s Mediation Symposium. The Law Society Gazette reported his comments:

In such cases, he [Mr Justice Ramsey] said, mediation could be used to give structure to the process where judges are asked what sentence a defendant might get if they pleaded guilty and to the bargaining by the Crown Prosecution Service over what alternative charges it might accept a plea to. He said: ‘I have a six-month fraud trial with eight defendants starting shortly. That will be a very expensive trial of white-collar crime and is precisely the sort of case that could be mediated in a system where criminal mediation was accepted.’

I’m not sure what the public appetite for plea bargaining is. The government will no doubt be looking at the suggestions as it seems to be embracing mediation as a costs saving measure for civil justice. It would be logical for them to extend it to the criminal arena.

I’m interested in the judges’ reported suggestion that mediation could take over the restorative justice process. I’m not entirely sure what is meant by that and what the people who are already pioneering restorative justice work in this country would make of it.

It’s also reported that Mr Justice Ramsey said mediation needs to assert itself as a form of dispute resolution in its own right and not be seen as “the best of a bad bunch“. The report does not expand on this comment or what it means. Mediation is currently offered as an alternative to litigation or arbitration. It tends to occur after one of those other processes have commenced. Maybe the suggestion is that it should be considered before those processes have commenced. The challenge the for the mediation community is to aim for the day when a client enters a solicitors’ office and asks the solicitor to help resolve their dispute by mediation.

Let me know what you think about mediating criminal cases by commenting below:

The Manchester Mediation Information and Assessment Pilot Scheme was born on 4th July this year. I am one of the Manchester mediators who have attended the court since then acting as “duty mediators”. Unfortunately the scheme appears to have been, in short, a failure.

What’s the Scheme for?

It was introduced following the Government’s consultation Settling Disputes in the County Court. There was a proposal to introduce a mandatory mediation information and assessment session step into civil litigation. The idea was to get the lawyers and the litigants to discuss each case with a mediator – the implication being the MoJ does not think lawyers are properly promoting the use of mediation to their clients.

No actual mediation takes place – parties just receive information about the procedure and potential for use in their particular case.

Why hasn’t it worked?

Litigants who are represented by lawyers very rarely attend court apart from for trial, that’s a bit late for mediation! So the objective – of getting information about mediation to litigants – was bound to fail.

The court tannoy announces the presence of the mediator every so often. There are posters advertising the service around the building and the DJs are well informed of the service. Despite all that the universal experience of my colleagues is of very few enquiries, usually none.

Should the proposal be scrapped?

Requiring all parties and representatives to attend court to speak to a mediator is unworkable, will add huge expense and frankly is patronising and pointless to the many lawyers who already use the full range of ADR tools to resolve cases. Lawyers already have an obligation (in the Conduct Rules) to advise clients about mediation and the courts already have all the necessary case management powers to ensure it has been properly considered. An alternative to adding new layers of procedure would be to ensure uniform use of the existing rules. That would cost money to train the judges and some method for solicitors to certify that they have provided the necessary advice. There is no money for the former and no appetite for the latter.

I’d like to hear your views – what, if anything, do you think should be done? Please comment below.

The government has launched a new Family Mediation Helpline website. The Justice Department’s website promoting the launch says 

Courts should be the last resort for people involved in family disputes. Mediation is an alternative to litigation and can be cheaper, quicker and less stressful. It is a voluntary process where a neutral third party helps both sides to agree on the outcome.

This of course echoes the civil procedure pre-action protocols which state that litigation should be a last resort. Can we now expect a similar website/helpline for people involved in other types of legal disputes to give them equal access to “cheaper, quicker and less stressful” methods of dispute resolution?

Lord Judge, the Lord Chief Justice

Last year Sir Anthony Clarke was the guest speaker at the Civil Mediation Council’s annual conference, this year it was the turn of the new Lord Chief Justice, Lord Judge. Lord Judge decided against entering the current debate about whether or not courts can or should have the power to compel mediation, in effect as part of the court’s own process. I have written previously about Sir Anthony Clarke’s and Lord Judge’s predecessor Lord Phillips’ views on this debate.

In his speech Lord Judge invited his audience of mediation converts to take a long term view about the current costs review being undertaken by Sir Rupert Jackson and any role mediation may have in the new costs landscape. He said

Can we just take a long term view? Every few years, or about every ten years, there is a great hullabaloo about the cost of civil litigation. Arbitration, after all, is a system of avoiding the court process. Do you remember when employment tribunals began? These were to be informal meetings at which the opposing parties would put their cases to a tribunal, almost a form of palm tree justice. Consider now how much more complicated and expensive the processes have become.

I do urge the Council to recognise this danger. The mediation process, could, unless danger is recognised and addressed, particularly if it is part of the court process, may eventually, and quite unintentionally, and by unforeseen accretion become increasingly formalised and procedural. It really must not eventually become just one more part of the expensive process that all of us are trying to avoid.

It is a valid and cogent warning but does rather over simplify the particular benefits a mediator can bring to disputing parties to one of just costs reduction. Of course his comments were made in the context of a very brief review of what Sir Rupert Jackson has had to say in his interim report but mediation is about so much more than reducing costs.

The Standing Conference of Mediation Advocates is a member trade association offering external and in-house certified accredited training in mediation advocacy and awareness, a programme of activities, a resource bank of law and other materials for practitioners and academics, advice on best practice, discounted books, professional and academic debate on developments in the field, and the active marketing and promotion of members’ practices as accredited mediation advocates.

Corporate, Full and Associate individual practitioner, academic and student membership are available. 

For further details, to register your interest or join online visit the link to www.mediationadvocates.org.uk or contact Andrew Goodman on 020 7092 2924, DX LDE 364, or by e-mail to agoodman@1chancerylane.com

The MoJ has published a consultation paper on proposed changes to civil court fees. The purported aim is to raise fee income by £21 million to bring it in line with a full-cost level. There are no proposed increases to issue, allocation or listing fees.

The bulk of the increases will fall on enforcement proceedings. The proposal explains this as follows:-

” In the context of enforcement, it is particularly important to charge the true cost of the particular process.  Charging the true cost enables creditors to weigh the appropriateness of taking enforcement action against a possibly vulnerable debtor, and the realistic likelihood of recovering their money.  

5. Equally, where enforcement is successful and the court fee is added to the amount enforced, this ensures that debtors, who can pay, face the full cost of their default. “

Anybody concerned about the proposals can reply to the consultation on the link above.