In the wake of the first mediation week and a government report on the savings it has made by using the medium, why are solicitors not doing more to promote it? asks Lucy Trevelyan

After years of paying lip service to the concept of using mediation rather than litigation to settle disputes, it seems the Treasury has finally cottoned on to the idea that alternative dispute resolution (ADR) can save cash. And since, as mediator and solicitor Tim Wallis puts it, ‘when the Treasury says jump, the government jumps’, suddenly mediation is in vogue.


Last week saw Mediation Week, an event designed by the Department for Constitutional Affairs (DCA) to promote awareness of the benefits of mediation among key civil justice stakeholders.


This follows the latest annual report on the effectiveness of the government's commitment to using ADR, just published by the DCA, which shows the use of ADR by government departments has grown from 49 cases in 2001, to 163 in 2003, and 229 in 2004. It led to an estimated savings in legal costs in 2004 of £14.6 million, an increase of 128% on 2003.


Tim Hardy, head of litigation at City firm CMS Cameron McKenna, says the saving in legal costs over the three years since the pledge by government departments and agencies ‘to consider ADR in all suitable cases wherever the other party accepts it’ totals £23 million. That should encourage government departments to use ADR, he says.


Mr Wallis, who is chairman of north-east firm Crutes, adds: ‘Mediation in the commercial sector has had clients’ backing for some time. The rest of litigation is now becoming aware of judicial pressure and, significantly, Treasury pressure, which manifested itself in recent public service agreement and spending targets relating to the DCA and Courts Service.’


Those involved in mediation provision agree that although there are still more mediators than cases available, sectors like insurance, employment and construction are increasingly embracing its use.


Professor Martin Partington, a law commissioner and chairman of the ADR committee of the Civil Justice Council (CJC), does not see any areas of law where mediation cannot work.


‘The big problem remains the lack of understanding of the power of mediation as a dispute-resolution tool,’ he says. ‘There are some circumstances where it will not or cannot work – for example, where parties need a formal court order – or where the position of the parties is so entrenched that they will not mediate. But there are very few issues where there is not some room to manoeuvre. It is also a mistake to think that mediation has to provide a total solution – it can contribute to a solution, for example, by identifying the real issues between the parties.’


Michael Lind, managing director of the ADR Group, says a new trend slowly emerging in the UK – but already thriving in the US – is on-line mediation, which is ideal for use in lower-value or cross-border claims. His group has already helped an on-line auction company and the Commonwealth Telecommunications Organisation tackles disputes in this way, he says.


Prof Partington says one area where there is growing interest in the use of mediation is in personal injury. ‘It has been assumed that, as most personal injury cases settle, there is no scope for mediation. But there are some now arguing that mediated settlements could add value, particularly if linked to rehabilitation.’


Jeff Zindani, managing director of Solihull-based personal injury law firm Forum Law, agrees that the take-up of mediation in this market is ‘very poor’ – less than 5% of all cases, he estimates.


He says: ‘Personal injury and clinical negligence are ideally suited to mediation, because mediation does not just deal with compensation, but also issues relating to accountability and responsibility. For example, if a worker is killed, it is not just about obtaining compensation, but also ensuring the company deals with this in an open and sympathetic way. Mediation offers a modern and cost-effective alternative to the bluntness and formality of the court system.’


Mr Wallis, a former president of the Forum of Insurance Lawyers, says an important factor affecting personal injury litigation is the use of mediation by the CJC, and the partial resolution of the personal injury ‘costs war’. This was achieved after he and Frances McCarthy, a former president of the Association of Personal Injury Lawyers, mediated an industry agreement on fixed fees for low-value motor claims.


‘I designed the mediation model, and Frances and I have successfully used it on several subsequent occasions in conjunction with CJC. On each occasion, there has been an industry agreement governing success fees in various types of personal injury case, and changes to the Civil Procedure Rules (CPR) have followed.’


Mr Lind says that more needs to be done to boost the use of mediation. Ironically, he says, although the strictly-adhered-to confidentiality that surrounds the mediation process is one of its main benefits, it also makes it difficult to raise the awareness of mediation among the public.


One change he suggests is the establishment of a body charged with accrediting mediators – although he balks at the idea that such a body should have regulatory powers.


‘If there was a body which set standards that training bodies had to adhere to, it would raise public confidence and make it much better for the mediation industry. It would stop cowboys going out and doing mediation and not doing it that well, which is damaging to the industry as a whole. The last thing we need, though, is a bureaucrat who over-regulates the profession.’


Mr Wallis maintains that a mediation statute, strongly pushing parties towards mediation – through stringent costs penalties for the reluctant or even by making it compulsory – could help boost the medium and allow disputes to be settled more quickly and cost-effectively.


‘I used to be against compulsion, but now I can be persuaded towards it. Studies in the US and Canada have shown that compulsion makes no difference to success rate, and it gets people to the table; you can’t make them settle – but they often do go on to do so.


‘The insurance industry says it doesn’t want to deal with an extra layer of cost in the process for failed mediation. But it is not a waste of time – you get to eyeball your opponent and find out if they are a toe-rag, or someone who would be a fantastic witness.’


Eileen Carroll, deputy chief executive of the Centre for Effective Dispute Resolution (CEDR), says: ‘CEDR and the wider mediation community does not support the use of mandatory mediation as it exists in other jurisdictions – for example, Texas and Florida in the US. However, the CPR do allow judges to recommend cases for mediation, with cost implications if a party refuses. But because mediation is still ultimately a consensual and confidential process, there are no exact figures for the number of court-recommended mediations.’


She says lawyers could do more to help promote the use of mediation. Although numerous practitioners have eagerly taken the training, she says, they are less than forthcoming when it comes to encouraging their clients to try it.


Ms Carroll adds: ‘Lawyers love to train and want to mediate, but they don’t have the same passion for leading clients into mediation. In a three-month study of first-time mediation users, 87% said the process exceeded expectations. Clients do like it. No other process makes people sit down in such a concentrated way.’


Mr Lind says a mediator’s role is one that suits both solicitors and barristers – with the latter increasingly entering the field as they have ‘seen their work dry up as a result of mediation’.


He says: ‘It’s a role that definitely suits solicitors because of their experience of having direct contact with clients, and they are best placed to assess whether clients want to settle or fight. Barristers make excellent mediators because they are articulate and familiar with the concept of settlement.’


Overall then, the mediation garden is looking pretty rosy. There is, however, one potential blot on the landscape: the ADR Group, the second biggest mediation broker after CEDR, is furious at reports that its rival plans to force its mediators to sign exclusive contracts.


Ms Carroll insists that CEDR is merely increasing its pool of consultants and, although she admits that around 30 will now mediate exclusively under CEDR’s flag, she claims this is the result of market demand for a more cohesive approach and for mediators to be more readily available.


Mr Lind counters: ‘The mediation market is at a crucial stage of its development and acceptance by the public at large. These sorts of restrictions are just not constructive. We wouldn’t dream of doing this – they are just trying to corner the market by creating artificial barriers. CEDR has done great work in promoting mediation, and now it is closing ranks. It’s a real step backwards.’


Sounds like a case for a mediator to sort out...


Lucy Trevelyan is a freelance journalist