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.
Comments
Meditation, not mediation
Meditation, not mediation, is the answer.
Come on everyone, just add a 'T' and make the world a better place.
Mediation is the Future?
as a current academic, and former litigator, I entirely accept that mediation has many merits, and needs to be encouraged.
What does worry me is the assumption that litigation is unnecessary. While mediators can, and do, facilitate settlements which incorporate elements which a court could not order, and this is a significant advantage, the starting point at least is the legal rights of the parties, or at least their asserted rights.
In order to be clear what these are, we do need a steady stream (not necessarily a major river) of precedents. In PI, Kemp & Kemp relies on decisions as comparators, and in equality cases we need to know how the various categories of infringement are defined.
Encouraging mediation will probably get buy-in from most sane and rational disputants. It will be a matter of sheer dumb luck if the judicial resolution of an unrepresentative residue of hard cases, with a disproportionate number of terminally stubborn, if not borderline deluded, litigants in person involved, actually produces a worthwhile body of precedent.
We do need seriously to think about how we ensure that those who enter mediation will continue to have a realistic set of information on what their 'legal rights' actually are.
Mediation may well be the
Mediation may well be the future but it's surprising just how many lawyers are so opposed to the idea because they mistakenly believe that it will put them out of business. It should be termed to be a "complementary" resolution tool and not an alternative! It's just not that black and white and the whole process still need lawyers to make it work effectuvely.
I am a lawyer/mediator. I am very disappointed by Falconers comment that it's difficult to be an "adversarial lawyer on one day of the week to a mediator on another" - because I had hoped that the overly aggressive, unecessarily adversial lawyer was a dying breed! These days - if you get a dispute as far as a final detemination in Court you've failed to do your job properly!
'if you get a dispute as far
'if you get a dispute as far as a final detemination in Court you've failed to do your job properly!'
Are you for real???
There are lots of reasons why mediation is inappropriate. What if the parties don't want to mediate? In my experience, the 'overly aggressive, unecessarily adversial lawyer ' IS a dying breed, but the 'overly aggressive, unecessarily adversial' client is not.
You can lead a horse to water....
At Last
I am becoming more and more encouraged by senior figures in the legal system identifying the need for mediation to be an entirely separate practise carried out by specialist mediators. At present, mediation is too mixed up with the legal system and those who are introduced to the idea receive too many mixed messages to be able to make a clear distinction between the purpose of mediation and the purpose of pursuing a legal claim based on the fundamental differences between the two processes. This confusion is increased by the fact that lawyers talk about mediation with people rather than mediators and the point Falconer makes has been noted for some time but rarely stated so openly and particularly not by lawyers themselves. Finally the recognition of the need for an entirely separate system to be created rather than continuing with just one that barely gives reference to the existence or purpose of mediation.
does mediation produce justice?
Models of mediation and litigation generally proceed on the basis of rational actors with realistic expectations. However there is a danger that a "complainant seeking "redress" is not rational, a body seeking to find a mediated settlement will be induced to make unrealistic concessions which result in prejudice to thiord parties who do not irrationally pursue unfair ends.
Here we go again.......
The government press release machine is in full flow at the moment. Yesterday it was "aggressive lawyers harm mediation" today it's " mediation is the way forward for equal pay". The result is "mediate without lawyers so we can under-settle and save lots of money".
Yet another attempt to undermine the legal system and deny people their rights.
Yes
Yet again, the entire discussion is proceeding on the false assumption that mediation is free. Anyone who has actually been involved in mediations knows that they can entail a lot of preparation and can easily add a five (or six) figure sum to the cost of the dispute.
Clearly, the judiciary wants to reduce the number of cases taking up court time and thinks that mediation is the answer (or part of the answer). What it should be doing is encouraging lawyers to rediscover the skill of negotiation, through which most disputes were resolved before anyone came up with the idea of "mediation" involving a third party.
Well said, me!!
Well said, me!!
MEDIATION - WIZARD WHEEZE?
It is not at all surprising that mediation should be regarded as the 'way forward'! But who will actually mediate? The solicitor who also happens to be a trained mediator is often the first port of call for a disputant. An individual is hardly likely to go straight to a mediator without first being appraised of his legal position and he is hardly likely to be referred to one by the lawyer who is fully appraised of it nor willing to place his client in a weaker negotiating position as against the stronger party whose deeper pockets run to the odd QC mediating on their behalf!
And who pays for the mediation service the lawyer provides? The client pays because legal aid (whats left of it) does not extent to mediation which is why it is so beloved by governments in general and the Treasury in particular.
Mediation favours the party with the deeper pockets. Any attempt at making mediation a compulsory prerequisite of court proceedings runs the risk of falling foul of Article 6 of the European Convention if the individual is effectively priced out of his ability to have his case heard before a 'fair and impartial tribunal'
Mediators will operate separately.....
James, regarding your comment: "And who pays for the mediation service the lawyer provides? The client pays because legal aid (whats left of it) does not extent to mediation which is why it is so beloved by governments in general and the Treasury in particular."
The point of what Lord Falconer said is that it is not the lawyer who provides it, it will be a mediator who is appointed independently of the lawyer. It often surprises me how little it is recognised that mediation exists outside of the legal system and this is what LF is pointing to. I have worked as a mediator for 18 years and very, very few of the cases I have mediated in have gone near the legal process either before the mediation or after it. People agree things and make decisions every day without needing a lawyer to oversee their decisions, and that includes in areas of dispute. It is possible for people to resolve disputes without recourse to law to their satisfaction even if 'legally' it would not be deemed to be the 'correct' outcome.
Other comments refer to the cost of mediation - a 5 or 6 figure sum? Gosh !!. I mediate in workplace disputes for Universities, local authorities and other public bodies as well as businesses. No case between two participants would ever cost more than £1600 for our involvement and more usually around £1100. Mediators, within a separate system, do not charge 'lawyers rates'.
Mediation
Mediation like litigation is not a one size fits all solution. It works for certain disputes and disputants but not all and in encouraging everyone to mediate we are losing sight of the new roles of the lawyer as information provider and problem solver.in the changing legal landscape. I see our job as providing potential disputants with options, which may be negotiation, mediation, collaboration (resolving the problems by sitting around teh table with the oppostiion and their lawyers) or arbitration, court being the absolute last resort.
All methods of dispute resolution have their advantages and disadvantages but the disputants and their lawyers will, with an array of options before them, be able to decide which is the best fit.
Infomation provider
Information provider and problem solver? That is a not a new role - it's what lawyers have done for ever. It's just using jargon to describe something which good lawyers having been doing for centuries. And there's not much point providing a client with "options" unless you advise him which option is most suitable and how to go about implementing that option. A good lawyer does not simply provide information, he advises and represents.
If the idea is that disputes will be mediated without ever going near a lawyer, that is pretty naive. It may work for disputes which are not sufficiently important or valuable to merit consulting a lawyer, but such disputes should be capable of settlement without involving a laywer anyway.
What I find curious is that there is now a body of case law which deals with costs where one party has refused to attend a mediation. Why is there not a body of case law which deals with costs where one party has refused to negotiate prior to attending a mediation? Cases used to settle through simple negotiation between solicitors. That skill seems to have been lost, with lawyers relying on a mediator to do something (negotiate) which they should be perfectly capable of doing themselves.
You can thank the idiot Woolf
You can thank the idiot Woolf reforms for the loss of negotiation prior to litigation. He was warned about it-but he knew better........
Falconer was an utter
Falconer was an utter disgrace as Lord Chancellor-an excellent example of what happens when the legal adviser gives the advice the client "wants to hear"!
Information provider and problem solver?
I'm puzzled by the phrase. A mediator isn't an information provider, other than about the mediation process, or a problem solver. The role is one of helping participants in the mediation process create the 'solutions' to the problem themselves or otherwise to resolve their difficulty which may not be solely achieved through 'problem solving'.
There seem to be a lot of 'anon' comments on here?
Possibly the Anons aren't
Possibly the Anons aren't trying to advertise their services-just comment on the topic.
Advertise?
To make relevant comments about the topic is 'advertising' while anonymous 'commenting on the topic' consists of personal comments about individuals with little accompanying contribution to the subject? Do you have some concern about there being an open discussion about this? So Woolf was an 'idiot' and Falconer was an 'utter disgrace'.....and what views do you have about the topic itself and what are the reasons for those views?
Not advertising-don't put a
Not advertising-don't put a link in!
.....and your views on the topic are?
The Law Gazette comment form gives space for a website, so I've simply given the information requested - if it were deemed 'advertising' I think the Law Gazette would not have invited the information. But I'm still unclear about your views about the topic on this page and the reasons for any views relating to it you may have?
Mediators v litigators
As a solicitor/mediator my view of the important distinction between the lawyer and the mediator is that the lawyer has to act upon their client's instructions and in their best interests, whereas the mediator is acting in the best interests of the mediating parties. So what difference does that make? If the parties have no need for a continuing relationship and want to maximise their "win", then it makes sense to have the most powerful ally on your side. If, however, there is likely to be a continuing relationship between the parties to the dispute after the matter is sorted, then it is usually counterproductive to create a "win/lose" mindset which will impact upon their future dealings. Litigation promotes win/lose, mediation promotes win/win.
Inquisitorial Mediation has
Inquisitorial
Mediation has such a strong Roman / Napoleonic whiff about it that it is hardly surprising those at the top of the legal trade are pushing it forward at the expense of own common-law system.
We may not have the guaranteed summer sunshine enjoyed by our European brethren, or the most chi-chi café culture. But our adversarial fights to the finish are quite simply better than their therapeutic inquisitions.
Don’t let’s throw it all away in a hand-wringing fit of fashion pique.
Mediation - threat to the common law system!
Yesterday I did not dare enter the debate as the comments reflected the cut and thrust of whose for and whose against ADR. Today I am fueled by Michael's comments to do so. Let's set out our tent then - and I am a practicing mediator arbitrator - you name it and I will do it bar litigation which wasn't designed with expedited commercial solutions in mind. Mediation isn't any sort of threat to the common law system. It is a bit like saying that negotiated settlements are a threat. They complement it. In terms if volume usage of mediation is tiny. Outside small claims I doubt whether 1 out of 100 cases referred to the court actually goes to mediation just as only a tiny percentage of cases actually go to trial - presumably in aid of developing the self same common law system. The nub is that clients come to solicitors to help them resolve their disputes. They aren't bothered about the nuances of Roman versus Saxon law; nor about inquisitorial or adversarial debates; they aren't remotely concerned about whether their case benefits or not the said common law system - such is the stuff of Gods not mere mortals - if they were so bothered they would expect their case to go to trial and further to appeal. No they seek a resolution; they seek one that is fair, reasonably quick and inexpensive. Using reasoned debate and dialogue to get there isn't something to be afraid of but something that Michael should embrace. In doing so I am sure that his own commercial practice will in reality march in tandem with the commercial interests of his clients not in some parallel universe.
ADR
I didn't detect that anyone posting a comment was against ADR. ADR has its place, but should not be necessary (in the same way that a trial should not be necessary) in most cases, because it should be possible to reach a compromise with a few Part 36 offers/some WP letters/telephone calls and, perhaps, a WP meeting. The truth is that litigation solicitors have been practising "ADR" for as long as disputes and litigation have existed.
The mistake is to regard mediation as some sort of panacea, something magical, something which should be tried before everything else or something which means that people should lose the right to have their case heard by a court. Perhaps because of the growth of mediation, too many solicitorsnow seem to lack the skills or willingness to engage in any sort of WP discussion without there being a mediator present. For a recent example, see ADS Aerospace v EMS Global Tracking Ltd [2012] EWHC 2904 (TCC).
As for whether Michael's practice marches in tandem with his commercial interests, I imagine that Michael's answer will (correctly) be that his job is to act in his client's best interest, even if they do not coincide with his commercial interests. ADR has nothing at all to do with the interests of the solicitor, which are subjugated to those of the client.