Can mediation always rise to the occasion?
The numbers of family and commercial mediations are growing - but while an elite group of commercial mediators is earning six figures, newcomers in both fields are finding it hard to gain the experience to break into the market. CEDR’s fifth mediation audit, published this week, shows the top commercial mediator earned £700,000 last year in a market dominated by about 100 mediators - mostly lawyers - doing 85% of the non-scheme mediations and averaging about £300,000.
But novice mediators, says Graham Massie, CEDR’s director of consultancy, were ‘lucky to do half a dozen’, earning £1,000 or £2,000.The market is set to grow, given the government’s determination to force disputes out of court. But practitioners have raised concerns over the lack of support from judges and courts in promoting mediation in family cases, and about the potential explosion of civil mediations arising from the government’s plans to refer automatically all small claims below £5,000 to a mediator - currently about 80,000 cases a year.
Looking first at family mediation, Mark Paulson, head of family and social policy at the Law Society, says the landscape is changing for practitioners, with the introduction of alternative business structures; the increase in online self-help services; consumers wanting more flexible legal services; and the possible move towards no-fault divorce. ‘It is not on this government’s agenda, but surely it will come one day,’ he says.
‘Add the now-confirmed loss of public funding in private law cases and practitioners and consumers will have more reason to consider mediation and other forms of dispute resolution.’
But that raises issues about access to the market and a provider base, Paulson says. ‘The Legal Services Commission is about to run a tender round for mediation providers in anticipation of a growth in demand but it takes time to qualify; there is a balance to be struck between making sure the market is readily accessible to new entrants for competitive reasons and ensuring standards are maintained to protect consumers.’ The other big driver is the introduction last year of the pre-action protocol, which requires privately funded couples to attend a mediation information and assessment meeting (MIAMs) before they can issue a court application in relation to children or financial issues.
However, a survey of Resolution members to mark the first anniversary found a huge variation in how courts in different regions were interpreting the rules. Just over half the respondents said that court staff were not regarding it as a requirement that a party issuing an application should show evidence of having attended a MIAM, while 78% of respondents said their local courts were not making an enquiry at the first court hearing or even at all, as to whether alternative dispute resolution was appropriate.
MIAMs were not made compulsory - as they are for publicly funded couples - because of concerns by the Ministry of Justice and the judiciary that it might raise human rights and access to justice issues. In a recent speech to Resolution, president of the Family Division, Sir Nicholas Wall, apologised that MIAMs were not working as they should in certain parts of the country, and urged practitioners to press the courts to make proper use of their powers to encourage parties to use alternatives such as mediation, collaborative law or arbitration, at every stage of a court process.
The poor response has prompted the MoJ to include a provision making MIAMs a statutory prerequisite for starting court proceedings in the new Children and Families Bill, a move largely welcomed by family practitioners and mediators. Jane Craig, head of family law at London firm Manches, is ‘disappointed’ that courts have not been following up on the MIAMs and says they are ‘missing a trick’ by not suggesting ADR as cases progress. ‘I think the government made a mistake by insisting MIAMs should be at the start of proceedings when people aren’t always ready to consider mediation,’ she says. ‘But they can’t get away from the idea that family lawyers are there to fan the flames of conflict. That is bunk. Good experienced family lawyers are more likely to help couples settle. You can’t cut lawyers out of the process to save costs. What you will then see is an increase in litigants in person who pursue bad points and want to see blood on the carpet. Introducing MIAMs will encourage more people to consider ADR but it is not a panacea.’
Over 1,100 Resolution members are mediators, trained either by Resolution or another provider. The 632 Resolution-trained mediators reported 4,953 mediation ‘starts’ in 2011, a significant increase over 2010, when 502 Resolution-trained mediators carried out 3,278 mediations. It is running 10 foundation training mediation courses this year, which last eight days over a three-month period. Mediators wanting to do MIAMs must first complete 10 hours of mediation.
There was a spike in the number of practitioners who wanted to train with Resolution last year but Sarah Lloyd, director of dispute resolution, says fewer are applying this year, adding: ‘We don’t know why that is.’ When it comes to MIAMs, she wants to see more education of court staff and the judiciary so that the pre-action protocol is properly complied with. ‘There are a number of issues to consider before making it compulsory - for instance, do you also make it compulsory for the respondents?’ (Respondents can refuse to attend.) Resolution has also been looking at why only a third of survey respondents said they were referring most of their clients to MIAMs.
Joanne Edwards, partner, collaborative lawyer and mediator with Manches, is vice-chair of Resolution. She says: ‘I looked at that figure with some concern. But what members are saying is that they run through all the available ADR options when they first see clients as part of our code of practice, so they are triaging them anyway. A lot of members also say they are concerned about the cost of MIAMs, which can be £200 in central London.’ Robin ap Cynan is the Law Society’s representative on the Family Mediation Council (FMC). He has been a full-time mediator for 12 years. His practice in Wolverhampton and Birmingham is 85% legal aid, while his practice in Shropshire, Worcestershire and Herefordshire is 60% legal aid.
He says charges for MIAMs locally vary between £50 and £100 plus VAT. ‘It depends on the hungriness of the practitioner, whether they are going to do it for free to get the experience or charge a commercial rate or a premium,’ he says. His two practices took different approaches. In one, they charged a flat fee for a MIAM; in the other, they charged more, but if the matter converted to a mediation, the charge for the MIAM was applied as a credit towards the first mediation session. ‘We found very little difference in the conversion rates,’ he says, ‘so it wasn’t commercially attractive and we dropped that approach’.
With mediation clearly on the agenda, what are the benefits and opportunities for practitioners in adding it to their repertoire?‘It has really enriched my practice,’ says Edwards. ‘It feels right to offer clients the whole array of options and it makes me approach my cases in a different way. There will always be cases which require court input, though it is difficult shifting from one to the other. It is something practitioners are grappling with and increasingly you are seeing people setting up purely ADR practices because they don’t want to do court work.’
She has developed a network of firms which will refer clients for mediation as, once a firm has advised on possible litigation, its partners cannot act as their mediators. ‘There are about 10 firms which proactively cross-refer their work. Commercially, the hope is what goes one way will come back another way,’ she says. ‘What has developed over the last year is that Resolution has encouraged collaborative practice groups to open up, so they now include independent financial advisers, collaboratively trained family consultants and now mediators. These are also proving successful in terms of cross-referrals.’
One new area ripe for development, says Mike Lind, managing director of the ADR Group, is in helping cohabiting couples whose relationship has broken down. ‘We see a big misunderstanding in the market about the provision of mediation for cohabiting couples who are separating. This is an area that is growing and we are commissioning some research into their needs as it is an area where mediation can play an increasingly important role.’There has been concern that there would not be enough experienced mediators to cope with the MIAMs and predicted growth in mediations.
Last year, more than 28,300 couples attended publicly funded MIAMs between April 2011 and February 2012 - a 20% rise on the previous year. Just over half went on to full mediations, with 68% reaching an agreement. The LSC is looking at a new non-competitive tender round for additional mediation services to meet the anticipated increase in demand. Any provider that is able to meet minimum service requirements will be awarded a contract to deliver family mediation.
Ap Cynan says there has been a huge increase in training by the legitimate mediation bodies. ‘The problem is whether there is enough work for mediators to gain the right experience. The way competence assessment works is you have to complete a number of cases, and it is rare people building a mediation career around other work will be able to do that in much under a year.’
He adds: ‘If they can’t source their own work, they will have to work with other mediation services. That may involve working for no pay, while some charge for giving work, so it is back to the old days of the premium you used to have for articles which is highly non-equality and diversity-compliant.’
Christina Blacklaws, director of family law at Co-operative Legal Services, was among many family lawyers who trained as mediators in the 1990s because of proposed changes in the law - but then the Family Law Act was pulled. ‘There have been many false dawns since then and the expectation that mediation would become mainstream didn’t come to pass. We just plugged on but everything will now change with MIAMs and the legal changes under the LAPSO act.
‘Mediation is all that will be left for many individuals in private law cases. It is often mooted that solicitors don’t refer their clients to mediation as often as they should do. There will be no alternative now - it is the push required to take it from a minority sport to a mainstream family justice activity.’ CLS, which is launching its family practice this summer, has a family legal aid contract and is seeking a legal aid mediation contract. Blacklaws says that as mediation moves from being very much a cottage industry to being more mainstream, it is important that it is properly governed and regulated ‘because you are in a very powerful position as a mediator’.
For solicitor mediators, the reach of the Solicitors Regulation Authority is unclear, says Paulson, because mediation is not a legal service under the Legal Services Act 2007. Under the SRA Code of Conduct 2011, ADR services are defined as permitted separate business activities, so a solicitor can provide them through a firm which is regulated by SRA or through a separate business which is not.
The Law Society published a practice note on mediation last year and refreshed its family mediation accreditation scheme, which currently has 176 members. It is also reintroducing the role of chief assessor, which was scrapped when the schemes went to the SRA following the split in the Law Society’s role.
‘I don’t know why they scrapped it,’ Paulson says, ‘because it makes a lot of sense to have someone to lead the technical development of an accreditation scheme, and we’re fortunate to be able to turn to Angela Lake-Carroll as the chief assessor for our family mediation scheme.’
On a shoestring
The main body overseeing family mediation is the FMC. Set up in 2007, it has six member organisations and has been run on a ‘shoestring and a prayer,’ according to convener and founding board member Deborah Turner. The council now has a code of practice, a constitution and agrees standards for mediators which are enforced through member organisations.
A review of the FMC’s future role by John McEldowney, professor of public law at Warwick School of Law, is due to be published shortly and is expected to recommend harmonising standards for private mediators as well as publicly funded ones.
Turner says the FMC is already working towards a single accreditation procedure for all mediators. It currently manages the compulsory accreditation of family mediators who want to do publicly funded work, but she says there is no statutory requirement for mediators doing privately funded work to be a member of any organisation.
June Venters QC has done about 20 MIAMs, with all but one converting to mediation. She feels very strongly about the disparity in accreditation. ‘Before you can do publicly funded mediations you have to complete a portfolio which takes 18 months, gaining experience and being marked by an external examiner. If you want to be a privately funded mediator and take people’s money you can do that with limited training and a little bit of post-course work.’
She wants a more unified mediation profession with the same standards and similar courses and training. ‘I feel very strongly about two areas - I would like to see better training on drafting documents, and I would like to stop charities which provide mediation from having preferential marketing opportunities because libraries and other organisations think they are offering the service for free.’
When it comes to regulation, Ap Cynan says his personal view is the FMC cannot be both a representative body and a regulator, but warns setting up a separate regulator would be very expensive. Concern about how standards can be maintained and how mediators should be regulated applies equally in the civil and commercial sector, says Lind. ‘There is going to come a time when the government recognises that mediation is a big enough discipline in its own right to need regulation and either it will be imposed or the industry will have to come up with a more structured environment than exists at present.’
Regulation is certainly a hot issue, says Peter Causton, Law Society representative on the Civil Mediation Council. A former professional indemnity lawyer with Hill Dickinson, he left the firm in March to set up on his own as a mediator: ‘Mediators should be regulated so clients have recourse if something goes wrong. But there is a tension between the desire to have more mediators and mediation and how they should be regulated, which would add to the cost.’
He adds: ‘Membership of the CMC is voluntary, so lots of mediators don’t join and anyone can call themselves a mediator. With Europe proposing a directive on ADR, those offering services will have to be regulated.’ Lind also raised concerns about the small-claims court consultation which could result in 80,000 cases being automatically referred to mediators. ‘Some of the work will have to be outsourced to the private sector - what guarantees are there that there are regulatory structures in place to make sure the provision is to a consistent standard necessary to protect the parties?’ He says the CMC will be working closely with the MoJ and Her Majesty’s Courts Service to ensure only qualified and accredited mediators are used.
Lavinia Shaw-Brown, manager of LawWorks Mediation (see box), says the small-claims court mediators are already swamped. ‘Here I am with a huge bank of keen mediators ready to do mediations for nothing and there they are with court mediators who are inundated. But we haven’t been able to sort this out. Nobody quite knows yet how it is going to work.’
With about 7,000 accredited commercial mediators in the UK, how are solicitor mediators faring? ‘Ultimately, it is a very competitive market place,’ says Andy Rogers associate director of the Centre for Effective Dispute Resolution. ‘This is a distress purchase where sensitivities are heightened - as a solicitor, you don’t want a rubbish mediator who might upset your client. So what becomes important is the mediator’s track record and this makes it a hard market to break in to.’
Pro bono work and mediation
The solicitors’ pro bono charity LawWorks, which runs the only free civil and commercial mediation service operating throughout England and Wales, has just launched a new mediation hotline. The public can ring the mediation telephone line and leave a message. They will then be contacted by volunteers from the College of Law and law firm Mayer Brown which will advise them about mediation and whether they may be eligible to apply for free help.
LawWorks Mediation receives about 500 enquiries a year which result in 100 mediations, with about 65% reaching settlement. Its 190 mediators comprise 65% solicitors, 30% barristers and 5% surveyors, architects and others. ‘They provide a great mix of talent,’ says manager Lavinia Shaw-Brown. ‘The LawWorks protocol is that all pro bono work is done to the same quality as paid work and that applies to my mediators. They don’t come to cut their teeth with us – we have some very senior mediators on our panel.’
The other misconception, Shaw-Brown notes, is that LawWorks only deals with small unrepresented parties: ‘That couldn’t be further from the truth. The only criterion is that one party cannot afford to pay, so some of the mediations are complex, multi-party cases involving hundreds of thousands of pounds.’
The biggest demand involves debt ‘in all its forms’, she says, alongside a broad range of landlord and tenant, employment, consumer, contract, wills and probate disputes.
Referrals come from Citizens Advice bureaux, the Bar Pro Bono Unit, LawWorks’ website and the Ministry of Justice’s website on civil mediation. Solicitors for the opposing party who know of the scheme also recommend unrepresented opponents to apply. LawWorks will also provide the applicant with a pro bono solicitor. Neither side has to pay for the mediation - but Shaw-Brown says it sometimes asks the other side for a donation towards the costs of running the service.
However, Shaw-Brown concludes: ‘We need education, education, education. There are still more trained mediators than mediations. But that will change with the Jackson reforms and the government’s decision to refer all claims below the current £5,000 small-claims limit automatically to a mediator - at present some 80,000 cases a year. Everyone in the mediation profession is pleased but nobody quite knows yet how it is going to work.’
Develop a track record
He adds: ‘If you have had a senior career and embark on this as your second career, you might expect the two to segue neatly. But you are entering a new market place where your skills are untested - and it normally takes two to four years, working at a fairly low level, to develop a track record to get the larger value cases which equate to the career you had before.’Rogers says a number of in-house lawyers have also trained to be mediators to deal with internal disputes. ‘The government has encouraged a culture where larger organisations train mediators in different parts of the company to resolve disputes. One energy group with nine different companies trained 50 people, mainly in-house lawyers to fly in to resolve issues on the ground.’
Some train to get an inside track, Lind explains: ‘They realise it is helpful when they are representing a client in a mediation because they know how to manage the process and get the mediator onside. That isn’t being dishonest or disingenuous - if you are representing your client you are still going to negotiate as hard as you can, but if you understand the process well you will be in a better position to help your client.’
Causton, who sits as a deputy district judge, says he became interested in changing career direction after representing a client at a mediation. ‘I see this as a great opportunity to make a living from something I enjoy rather than working through piles of files.’ With two years under his belt, he says it is difficult to make your mark as a junior mediator because appointments tend to be on word of mouth and reputation. ‘You have to build up a following. I am currently shadowing and trying to build up a reputation. It is a potentially lucrative career if you can get in to the big cases.’
With interest growing across the profession, Lind started a project three years ago to educate the next generation of legal professionals about mediation. ‘We work with BPP and University of the West of England to give LPC and BPTC [Bar Professional Training Course] graduates specialist mediation training. The rationale is that a huge number of people still don’t understand mediation,’ he says. ‘So far we have trained about 400 graduates - as young entrants they aren’t going to get any juicy mediations straight away but they have time to develop their skills. This is a programme we would like to develop significantly - it is my vision for the future.’
Grania Langdon-Down is a freelance journalist