When former Court of Appeal judge Sir Henry Brooke retired at the age 70, it was to embark on a new career. Two years on he is much in demand as a mediator, having already conducted more than 50 mediations, from high-profile corporate disputes to individuals at war over land boundaries. He is as enthusiastic about his latest role as he was about the many prestigious positions he held during a lengthy career at the bar, in the High Court and as former chairman of the Law Commission.

‘After 45 years in litigation, I have seen so much money spent, stress caused and delay encountered. Reaching settlement at the door of the court is entirely unsatisfactory,’ he reflects.

Mediation is still in its relative infancy in the UK, despite alternative dispute resolution (ADR) being promulgated by the Woolf Reforms in 1999. More recently, however, there has been renewed emphasis on the method, largely in response to client demand, with the introduction by the Ministry of Justice of a National Mediation Helpline to increase awareness and access to mediation for the general public, and the creation of the Civil Mediation Council (CMC).

Last April the European Parliament approved a directive to encourage mediation for cross-border commercial disputes. In May, two of the country’s leading lawyers, Sir Anthony Clarke, Master of the Rolls, and the Lord Chief Justice, Lord Phillips, both gave separate speeches calling for greater use of ADR and mediation in particular.

‘A major part of the agenda now is to explain as clearly as possible what can be achieved [through mediation], where to go for help and how much it will cost,’ confirms Sir Henry.

In 2007 there were 12,050 calls to the National Mediation Helpline, of which 1,632 were referred to mediation providers. Some 774 cases led to mediation, of which 510 successfully settled – a rate of 66%.

Ironically it could be the economy that provides the best marketing campaign. Cash is king during tough times and businesses will fight over smaller sums of money. Mediation is speedy and cost-effective.

‘If a client gets paid earlier, that has to be a good thing. It is not about giving up without a fight – mediation is much more sophisticated than that,’ says Michael Lind, managing director of the ADR Group, which was the first company in the UK to provide ADR services, soon followed by the Centre for Effective Dispute Resolution (CEDR). Together they remain the leading providers of ADR services, including training.

‘Mediation is a very powerful tool in times of economic difficulty,’ Lind adds.

Train to gain

For any lawyer considering embarking on formal mediation training, whether to qualify as a fully accredited mediator or simply to augment existing legal skills, the climate is certainly favourable, though it is competitive.

‘There are roughly 140,000 solicitors in England and Wales and we’re lucky if we’ve trained 5,000,’ says Lind. ‘I look at the bigger picture and so much of the profession out there should know more about it. Not everyone needs to do a full course, but I am amazed at the number of calls we receive from lawyers who have been directed by a judge to consider mediation and ask us what they should be doing next. Every lawyer should know what to do, but there remains a huge resistance to, and ignorance of, mediation.’

One reason for this is that lawyers, as part of their legal training, consider themselves already adept at negotiation and do not feel the need for additional training or recourse to mediation services. The field of personal injury law has witnessed one of the lowest uptakes of mediation, yet it is an area where it could be best used.

‘Personal injury lawyers feel that they are very good at negotiating settlements and therefore do not need assistance from a mediator,’ explains Frances McCarthy, head of personal injury at claimant firm Pattinson Brewer and board member of Trust Mediation, a not-for-profit specialist PI mediation service. ‘Unlike commercial matters, there is usually no on-going relationship, so there is little need to preserve relations. But in practice, mediation is far more useful in PI than people realise.’

There are often multiple defendants in PI and simply getting them around a table can be of huge benefit. Issues are often complex and can be taken forward by forcing parties into the same room, and ‘for clients, they feel like they’ve had their day in court without the stress of it’, says McCarthy.

The number of organisations offering training courses is mushrooming, as the likes of CEDR, the ADR Group, the Chartered Institute of Arbitrators and the Academy of Experts (two more leading providers) become victims of their own success. The more mediators they train, the greater number of competing organisations are established. Thus the first port of call for any would-be mediator is the CMC, which lists all course providers and mediation groups which have received CMC accreditation, currently numbering 46 but increasing steadily (see below).

Typically, a full-time mediator training course will last five days, with course materials studied beforehand and additional written assignments completed afterwards. The first two days may be spent learning the skills needed to become a mediator, taught via lectures, practical exercises and role play. Day three may then be a coaching day, with one-to-one tuition with an experienced mediator who provides feedback on performance, while days four and five are spent being assessed.

‘It’s a very practical course based on role-play,’ confirms Daria Viola, training co-ordinator at CEDR. ‘At the end of the course, candidates either obtain accreditation or are advised they need further practice and re-assessment, which we also organise.’

The courses do not come cheap. CEDR currently charges £4,225 plus VAT for its five-day ‘Fast Track’ course. But for those who make a career out of it, the rewards are lucrative. The average fee for a one-day employment mediation, for example, is £1,000, while those who are most in demand can command £5,000 for eight hours work plus preparation costs.

Opening the flood gates

It is little wonder that more and more people, from doctors, architects and HR professionals to housewives seeking new careers, are training to become mediators. No prior qualifications are needed. ‘There has been a definite increase recently,’ notes Viola. ‘In the past it was mainly lawyers who undertook our courses, typically male and of a certain age. But now you see much younger people, and females, with a 50-50 split between lawyers and non-lawyers.’

At the bar there are hundreds of qualified mediators. Littleton Chambers was the first set to establish a mediation service ten years ago, and recently launched its Urgent Mediation Unit, offering same-day mediation where needed. Littleton’s Philip Bartle QC says: ‘Because there is no formal regulatory body for mediators, it makes for a large spectrum of abilities. But there are some very good mediators out there who are not lawyers, nor indeed professionals at all.’

But until mediation becomes everyday practice in our justice system, the demand for mediators will fail to keep pace with supply. Most mediators we spoke to think the market is becoming saturated. ‘It’s very easy to get the training and the qualification, but much harder to get the work,’ admits Richard Stephens, technology solicitor, mediator and arbitrator at London-based Law Office of Richard Stephens.

‘I certainly wouldn’t recommend anyone charging headlong into mediation alone,’ observes Justin Patten, solicitor and founding member of Human Law Mediation. ‘I still have my legal practice and I do training as well as mediating. The key is to have complementary skills and complementary forms of income. Any solicitor going into mediation should do so with their eyes open.’

But just how easy is it to combine a legal practice with a career as a mediator? ‘Very tricky,’ concludes Stephens. ‘You have to make a choice where you do your marketing, as there are only 24 hours in a day. But it is possible, particularly if you are in a specialist legal area, where it is desirable. As adjudicator you need current expertise and you need to be active in your field.’

Mediation training can benefit more than just mediators. Patten admits he is far better at handling client negotiation as a result of his mediation work. ‘You can focus far better on people’s motivation. In litigation, you focus just on your client’s interests, but you learn to look at the bigger picture. It makes you a better solicitor.’

One might think there is a conflict between being a lawyer, where the object is to generate fee income, and conducting mediation, where the goal is to seek early resolution and save costs. Not so, say lawyer-mediators.

McCarthy explains: ‘As a claimant lawyer running a business, you deal with cashflow and profit. Mediation means you get the cash in straight away, so insurers like it and it benefits your cashflow, while a trial can be costly for you as a lawyer and you are unlikely to be properly rewarded, which affects profit. So mediation makes sense.’

Mediation would appear to make sense whichever way you look at it. All that is needed is to promote its use in appropriate cases, and that means convincing you – the lawyers – not just to use it, but to learn more about it. Even after 45 years in the law, Sir Henry Brooke undertook 13 full days’ training with three different course providers, concluding: ‘Every day of those three training courses was pure gold.’

Training at a glance

  • Training courses are run by most CMC-accredited mediation providers, of which there are regional groups. Go to www.civilmediation.org.
  • The largest mediation trainers include: the Academy of Experts (www.academy-experts.org); the ADR Group (www.adrgroup.co.uk); CEDR (www.cedr.co.uk); and the Chartered Institute of Arbitrators (www.arbitrators.org), but there are many more course providers.
  • Prices vary, but fees at the major providers range from £3,000 to £4,500 for a five-day full-time course. Accreditation is not essential to practise as a mediator, but desirable as an indicator of quality.
  • Earnings are dependent on experience and reputation, ranging from pro-bono work to £5,000 a day.
  • For further information on mediation go to: the National Mediation Helpline (www.nationalmediationhelpline.com). See also specialist areas such as: family law – www.familymediation.co.uk; personal injury – www.trustmediation.org.uk.

Kate Durcan is a freelance journalist.