Talking the talk

After an initial post-woolf spurt, efforts to encourage mediation have faltered.

Emma Vere-Jones investigates the future for alternatives to litigation.

The Woolf reforms looked set to bring about the dawn of a new era for mediation, for the number of mediation cases rose dramatically when the reforms were first instigated.

There was also a noticeable drop in litigation, but recently it seems clouds have dulled this dawn.The latest figures from the Centre for Effective Dispute Resolution (CEDR) indicate that, despite the initial increase, the number of mediation cases has now reached a plateau.

The centre carried out 467 mediations in the 12 months to June 2001, compared with 462 in the previous year.This pattern is consistent with figures from the Association of Northern Mediators (ANM).Anthony Glaister, a partner at Keeble Hawson and chairman of ANM, says in the past two years there has been a definite levelling off in the number of people looking to resolve disputes through mediation.In 2000, the ANM monitored 214 mediations; in 2001 that number fell to 93.

It is difficult to make a direct comparison because the number of post-mediation survey returns filed by mediators dropped from 54 to 32, but Mr Glaister says the figures still show a definite decrease.Indeed, last month the Lord Chief Justice, Lord Woolf, the architect of the Civil Procedure Rules (CPR), delivered a stinging reminder to those engaged in public law cases and to lawyers in general, that trial litigation should be the last resort.Ruling on a recent Court of Appeal action, Frank Cowl & Others v Plymouth City Council [2001] EWCA Civ 1935, Lord Woolf said: 'The importance of this appeal is that it illustrates that, even in disputes between public authorities and the members of the public for whom they are responsible, insufficient attention is paid to the paramount importance of avoiding litigation whenever this is possible.'And the view in the legal profession seems to be that the Woolf reforms have had less effect than expected.

'I suspect after the initial enthusiasm, which produced a lot of work, the amount has now died off,' says Charles Plant, litigation partner at City firm Herbert Smith.There are several reasons why the uptake of mediation has not been as great as hoped.First, Mr Glaister suggests there is still a lack of education about mediation on the part of clients and solicitors: 'Many do not regard mediation as something they need in their tool-kit.

There is still a difficulty in under-standing how mediation works.'There is also a reluctance on the part of solicitors to use mediation.

They think if they can't use their skills to resolve the issue in negotiations, a mediator will be unlikely to settle the matter anyway.'CEDR's chief executive, Professor Karl Mackie, agrees that there was initially some hesitation on the part of solicitors regarding mediation.

'It was kind of a fear of the unknown.

They didn't want to go into a process when they're not sure if they'll come out looking credible.''I was very sceptical,' admits John Potts, head of litigation at Clifford Chance.

'I had to be dragged kicking and screaming into mediation.' He says that initially he did not believe parties would want to settle disputes, particularly those involving large sums of money, without a high-quality judge involved.But attitudes change.

'Now I don't think there is a case that couldn't benefit from mediation,' says Mr Potts.

'People have said that both parties leave mediation with a sense of remorse, but we've always gone away and opened a bottle of champagne.'He adds that even if cases do not settle at mediation, it focuses the parties on the core issues at an earlier stage in proceedings.However, Mr Potts sounds a note of caution, saying there is a significant difference between the top mediators and those who are less experienced.

This can have a profound effect on the outcome of mediation, he says.'There's no point in going to mediation unless you have an authoritative, persuasive mediator with at least as good a technical competency as your own,' agrees Mr Plant.

'Otherwise the experience is positively counter-productive.'Henry Brown, a consultant with Penningtons and member of the Law Society's ADR working party, says the anecdotal data showing that mediation has plateaued might be unreliable.

He says: 'Although data from the big mediation players - CEDR and the ADR Group - might suggest this, many more mediation companies have sprung up.'But while solicitors may be turning more to mediation, there is still resistance on the part of the judiciary.

'Major City firms are becoming more and more active in mediation.

County courts are a totally different story, however,' says top mediator David Shapiro, of City firm SJ Berwin.Of the 93 mediation cases monitored by the ANM last year, just 18 were referred by the courts, with the largest proportion still referred direct to the largest mediation providers, CEDR and the Alternative Disputes Resolution (ADR) Group.Mr Glaister says there has been a poor uptake from the Manchester, Leeds and London county court pilot schemes that offer mediation as an alternative to litigation.

'It just shows that court schemes are still at a low threshold,' he notes.'Judges have not been as tough with the Woolf reforms as expected.

The position has rather slipped back to an approach that existed prior to the reforms,' says Raymond Werbicki, Masons' head of commercial dispute resolution.'The commercial court was initially quite assertive about suggesting mediation as part of case management.

But in construction, for example, the judiciary indicated that it was for the parties to decide,' says Mr Werbicki.

'If judges are robust about suggesting mediation, solicitors will go along.

If they aren't, solicitors will only resort to mediation in a tactical way.'Bodies such as the ADR Group and CEDR hope the judiciary will be stronger in encouraging mediation.

One tool that may make this effective is the use of cost sanctions if a party refuses to mediate.

Under the CPR section 44.5, the court can take into account a party's refusal to mediate when awarding costs.

However, as yet judges have rarely used this clause.'A judge would have to be pretty robust to resort to CPR 44.5,' says Mr Glaister.

Currently, he says, parties can pay 'lip service' to mediation without considering it as a serious option.

But some think it will be used more often as judges become familiar with the mediation process, while others say parties should not be forced to mediate.Mr Plant has seen no decrease in the amount of commercial litigation.

However, he says the CPR has led to a greater exchange of information in the early stages of cases and more opportunity for parties to meet, which has made settlements more likely.

But an increase in settlements may also lead to a drop in mediation.Mr Brown agrees.

He says: 'As solicitors themselves have been taking more mediation courses, they are better able to settle cases earlier because they have become more accustomed to the settlement mindset.'Mr Glaister contends that another reason for a disappointing level in mediation hinges on the government.

'While there has been much talk about increased use of mediation at all levels throughout the government, there has been little help at court level.

There is not even one publication outlining to people what mediation is.'He suggests that this is because of budgetary constraints in the Lord Chancellor's Department and the Treasury.

'Yet, we're talking about a tiny, tiny amount of funding,' he notes.

Indeed, the mediators fund the current court schemes, with the Law Society providing back-up.So, what then is the answer? 'Voluntary programmes have never worked.

Mandatory programmes have never worked.

What does work is suitability screening,' says Mr Shapiro.

In this situation, a judge can look at a case and, on the basis of the allocation questionnaire, decide what is suitable for mediation.Mr Glaister advocates 'education, education, education'.

At the user level, basic information should be available, and at the representatives' level there needs to be training and workshops for solicitors.

Also, the Judicial Studies Board should look at training for the judiciary.In response to calls for further education, the ADR Group will next week launch a training scheme, commercial mediation and conflict resolution.It is divided into four sections: a training programme for those who wish to become mediators; a continuing programme for mediators wishing to improve their skills; a programme for representatives, such as lawyers and in-house counsel; and a corporate diplomacy programme designed to educate senior management about the benefits of mediation.Michael Lynd, head of case management at the ADR Group, says the programme, which will be run throughout the UK, is designed to take the focus away from the judiciary, and further educate lawyers, clients and the general public as well.Indeed, many people are certain that mediation is still set to rise.

'Woolf laid the foundations for mediation to become an integral part of the judicial system,' says Professor Mackie.

'There was an uplift in the immediate aftermath.

Currently, we're in a breathing space while things settle, but I think we'll see another surge of interest in the near future.'Emma Vere-Jones is a freelance journalist

ADR working party factfileFor more information about the ADR Working Party, contact Ms Simret Parmar, policy adviser ADR, at the Law Society, 113 Chancery Lane, London WC2A 1PL, DX56 London/ Chancery Lane, tel: 020 7320 5767.