Mediation is the future, Falconer says
The Supreme Court’s equal pay ruling yesterday will lead to ‘billions and billions worth of claims’ Labour’s former lord chancellor has predicted. Lord Falconer (pictured) suggested that such claims be mediated rather than leaving them to the ‘vagaries of the legal system’, which he said would be costly and could take years.
He was commenting following a ruling that extends to six years the time workers can bring a claim against their employer in relation to low pay and missed bonuses.
The judgment gives 174 female former staff at Birmingham City Council the right to claim compensation for unequal pay, and could lead to thousands of similar claims against employers across the country in both the public and private sector.
Such litigation ‘will have a very bad effect’, Falconer said.
Speaking at the Chartered Institute of Arbitration’s mediation symposium today, Falconer said that ‘mediation is the future’ and will become more widespread, especially for commercial, employment and media cases where the adversarial process is ‘too expensive, too risky and too dangerous’.
Mediation, he suggested, could be used to resolve disputes between the media and others, giving the third-party mediator the opportunity to show aggressive media organisations ‘the pain’ they cause.
But Falconer questioned whether mediation could really take off if mediators continued to practise as lawyers as well. ‘It’s not that easy to move from being an adversarial lawyer on one day of the week to a mediator on another. It is not just about training, but a cast of mind,’ he said.
Increasingly, Falconer said successful mediators will operate separately from the litigation system. In five years’ time, he predicted mediation will be an ‘expert skill’ performed by a ‘cadre of specialist mediators’, who are judged on the results of their past cases.
However, Falconer said that the growth of mediation would not lead to fewer cases. ‘Its growth has been accompanied by a growth in the number of lawyers’, he said.