Using modern communication methods such as telephone, fax and email to mediate in small claims disputes has led to unparalleled success for James Rustidge, finds Rupert White


James Rustidge might very well be the most famous unknown name in mediation. In just one year from June 2005 he made such a success of a pilot scheme for small claims mediations at Manchester County Court that the in-court model he represents looks set to be the dominant model for England and Wales. And he has never even been a lawyer.



His route into mediation could not, in fact, have been more accidental. A rugby-playing ex-National Crime Squad police officer who retired from the force in 1998 after a car accident, he intended to get into teaching, and by chance saw an advertisement in a newspaper for the Manchester pilot.



‘To be quite honest, when I heard the word “mediation”, although I had a good idea what it was, I didn’t know it had any real part in the judicial system,’ he says. This fresh perspective is what HM Courts Service (HMCS) seemed to be seeking. ‘I think to a large extent that was quite a good idea, because I came with no preconceptions about what should and shouldn’t be happening. I was quite happy to embrace everything to do with mediation.’



All of which perhaps explains his success rates – more than 85% of cases settled on the day, and even better success rates using phone-, fax- or even email-based mediation; no settlements needing enforcement; and satisfaction rates of 90% or more. Mr Rustidge has also slashed the average time taken from allocation to hearing of a small claim – from 13 weeks down to fewer than five weeks, says HMCS, from initial contact to a mediated settlement agreement. And these numbers are for a previously untried mediation time limit of one hour.



So how has he done it? When the Gazette broke the news last September that HMCS intended to make his success the template for small claims country-wide, some mediators worried that perhaps his methods were lacking in training, or that he might be pushing parties into decisions (see [2006] Gazette, 14 September, 1). But nothing appears further from the truth.



‘Quite rightly, I suppose, there was some concern as to whether that was mediation at all, or whether you could actually do it within an hour. Was it just knocking heads together? [But] I can assure those people now that it’s not, quite simply by the research that was conducted on each scheme.’ The researcher assigned to assess the Manchester pilot came up with his customer satisfaction figures, but, he says, he also receives thank-you letters, phone calls, emails and faxes.



Arguably Mr Rustidge’s greatest success has been in essentially inventing the application of telephone (and fax, and email) mediation. This is another technique that has come under fire from some quarters for perhaps not being mediation at all. Mr Rustidge characteristically takes these accusations on the chin, and points to the results. Assessors could see no substantive difference between a 50-minute telephone session and an hour-limited face-to-face, he says.



‘By October [2005], more and more cases were coming my way, and I was quite surprised at the geographical spread of where parties were based. Often they were in London, there were some in Scotland, Wales, Norfolk… and I wondered why we had to have this system where it was just face-to-face.’ So he decided to try ‘shuttling’ a negotiation between parties in Manchester and London – meaning he dealt with them individually, rather than bringing them together – which settled and resulted in ‘a very nice letter from the lady in London saying that what a great service she thought it had been’.



Once again, it seems Mr Rustidge’s fresh perspective made a real change. ‘I thought, well, if that’s good customer satisfaction, I’ve got to be able to move this on,’ he says. It seemed ‘the most sensible option’ to offer it whenever parties could not attend. He always offers the opportunity to meet, he says, but the success of these ‘remote’ mediations means he has outstripped the other small claims pilot schemes by generally high margins.



And as to whether this really is mediation, he has a simple response: ‘The feedback we get from parties is just as positive as we’ve had for mediation. I wonder whether the outcome is the most important thing, and I think it is. If it’s an outcome that they can live with, then that’s fine.’



Telephone mediation succeeds, he says, because it suits how the world actually works. ‘Look at the swathes of the country where no one’s going to be touched [by the courts as they are],’ he says. When he realised telephone mediation would work so well, he says, ‘I thought straight away, I bet this would work in Norfolk. I mean, who wants to tramp from Norwich to Felixstowe?’ But it is not just for areas traditionally associated with large distances to travel to court – London, he says, is just as hard to negotiate, and telephone mediation would work there just as well.



‘It does work – I can’t say that more strongly. If parties want to do it, and they do, it should be made available. When you get to the nitty gritty, it’s exactly the same [as other forms of mediation].’ Indeed, some small claims might have been impossible without this inventiveness – Mr Rustidge mediated between a landlord working in the Middle East and a tenant in the UK by email, fax and phone.



Technology will play an increasing part in helping to bring people back together to settle their differences, he thinks. ‘One of the biggest problems in fast- and multi-track cases is the accommodation, the mediator travelling, what offices are they going to use. And that seems a bit... not in this century, doesn’t it?’



Mr Rustidge denies claims that perhaps he has pushed people into decisions, and his satisfaction scores appear to back him up. He felt under no pressure during the trial period, he says, and this lack of pressure allowed him room to make a difference. For example, one mediation which he oversaw involved a large landlord and a lone tenant. The mediation failed, but the lack of settlement was itself a success, he says.



‘It was a young black man from a poor area of Manchester, and he wasn’t happy with the situation he was in, he wasn’t happy with the prospect of court, didn’t like people in suits, and he was being asked to pay where he thought he had an agreement with the previous landlord,’ Mr Rustidge recounts. ‘He didn’t feel he owed money, but in private to me he said, “Look, I’m going to pay them”. And when I asked him why, he said, “Because everybody’s always more or less people in suits, just like you. I’ve had a bit of a rough ride, and I think that that’s the way it’s going to go”.



‘So I took him out of that room and we crossed over to where the courts were. I said, “Whatever you think might happen later, you’ll get a fair hearing, the judges will have suits, but this is a courtroom, and this is not what you think it’s going to be”. When he came back to the room, he said “I’m not paying them and I’m going to go to court”. He shook my hand and said, “You can tell them”.’



This was a success, Mr Rustidge says, because his question could have been, ‘Well, what are you going to pay them and when?’ He adds: ‘But it’s not like that. You don’t have to be like that. I wouldn’t say to anyone, “Well, come on, let’s get to this”. If that was what we were talking about, it would be something of a sham, wouldn’t it? If I didn’t enjoy it, I wouldn’t do it, and if I was forcing people into things I wouldn’t even be here.’



Mr Rustidge says his life skills and experience gained in the CID may have something to do with his attitude and success, but he cannot be sure. If you talk to him, however, you realise that, if HMCS can find more people in his mould, there seems no reason the Manchester scheme will not work, and every reason to believe it might produce not just results, but justice too.