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Civil Mediation Council Conference 22nd May 2014

CMC National Conference
22nd May 2014, Leeds

Opening the 8th annual conference held in Leeds on 22 May 2014, Chair of the CMC Sir Alan Ward, welcomed in particular workplace and community mediators and a representative from the Family Mediation Council which he said was a sign of the increasing collaboration between the different branches of the profession. He thanked the conference sponsors ADR Group and JAMS International.

The theme of the morning was Mediation and Government.

Lord Faulks QC, Minister of State for Justice, delivering the keynote speech repeated the Government’s commitment to mediation. Although he thought that it was no panacea, mediation was, he said “a cornerstone of an effective justice system.” He pledged the Government’s support for signposting litigants to mediation through distribution of leaflets in court centres, the requirement in the directions questionnaire for parties to have considered mediation, and his Department’s re-consideration of the introduction of compulsory Mediation Information and Assessment Meetings (MIAMs) in civil cases. He welcomed the aspirations of the CMC to become the voice of mediation in England and Wales and the proposed introduction of a light touch registration scheme for mediators by January 2015.

The Ministry of Justice’s press release on Lord Faulks’ speech can be accessed here.

Responding to the Minister’s address, Diana Wallis gave the view from Europe, drawing on the experience of other countries where greater use of mediation imposes less burden on the courts, saves money and speeds up the economic recovery. Tom Thomas OBE observed that the tension between new operations and old management styles was resulting in conflict in interpersonal relationships and called on mediators to become more skilled in their use of the various mediation models across all contexts. The journalist Joshua Rozenberg noted that mediation was “a difficult story to sell” given the requirement of confidentiality which attaches to the process. He urged the mediation community to find a way that would allow greater publicity to mediation without damaging the process. He floated the possibility of creating a category of Chartered Mediators to enable the profession to regulate itself more effectively.

A variety of views were expressed from the floor both encouraging the introduction of MIAMs in civil justice and cautioning against them. District Judge Andrew Greensmith recommended extension of the court referred mediation scheme he has introduced in Lancashire in family matters to the civil courts. There was a call for the Government to take the lead on MIAMs, rather than responding to scepticism from consultees and for individual mediators to promote their own practices better in order to raise awareness of the benefits of mediation more generally. Delegates emphasised the need to engage with the lay and professional users of mediation, not just the lawyers, and the desirability of working together with mediators in other disciplines.

The morning concluded with a series of parallel seminars and workshops on various subjects including: teaching mediation skills to school children, the opportunities presented by technology and online mediation, the EU mediation survey results, particular issues concerning the use of interpreters in mediation, discussion on how ACAS resolves employment disputes through it conciliation service, regulation, compulsory mediation and building a mediation practice.

After lunch, Heather Allen led a practical exercise, facilitated by Amanda Bucklow, David Richbell and Paul Randolph which encouraged delegates to consider their different roles as mediators and how best they might explain better to the community what it is they do. The roles identified were: Host and Process Guide, Safety Officer and Process Guardian, Empathetic Ear and Comforter, Spin Doctor and Editor, Architect and Negotiation Coach and Tester and Challenger.

The theme of the afternoon was Mediation and the Law.

In his keynote speech, Lord Justice Briggs identified two broad areas where there might be tension between judges and mediators. The first was around issues such as how much use should be made of mediation, the degree of compulsion to mediate, and the extent of encouragement from the judiciary to mediate. He noted that there was no agreement within each group on these issues let alone between the two sides and emphasized that in broad terms the judiciary and the mediation professions had the same objective, to deliver an effective method of dispute resolution. Judges can help mediators by signposting mediation as an alternative form of dispute resolution and by imposing costs sanctions on parties who unreasonably refuse to mediate. Mediators can help judges by educating the judiciary about the mediation process, resolving a dispute partially so that not all issues come before the court and by ensuring mediation agreements are clear and watertight.

The other area of tension was on the vexed question of to what extent a court should enquire into what took place during mediation. Given that mediation is intended to and does alter or create legal rights between the parties, he said, it was inevitable that the courts would be called upon to interpret those rights where there was a subsequent dispute, subject to the established rules of confidentiality and without prejudice privilege. A recent case had highlighted the extent to which the court could inquire into what took place in a mediation where the parties both consented. Mediators were naturally reluctant to appear as witnesses through fear of disturbing the inviolability of the process, having their practices exposed to cross-examination, and losing the appearance of impartiality. He encouraged a discussion between the judiciary and the mediation profession to address these issues.

In the ensuing panel debate chaired by Bill Wood QC with Tony Allen, John Moore and Mark Mattison it was noted that there were different thresholds for court examination of mediations permitted under EU law governing cross-border disputes and purely national disputes. The call for dialogue between judges and mediators was reinforced. As a user of mediation an insurer noted that it was not always apparent how the mediation process worked and that users often want an evaluative approach, especially in private sessions.

Andy Rogers introduced the CEDR/CMC annual survey results which can be accessed here.

The afternoon concluded with an update by the CMC’s Chief Executive, Jon Siddall, about the Council’s progress on incorporation, applying for charitable status and the introduction of a mediator registration scheme.

In closing the conference Sir Alan Ward thanked the delegates and speakers again and the conference organizers, especially David Richbell and the Registrar, Tracey Stewart, for all their hard work in making the event such an interesting and successful one.

Iain Christie
Civil Mediation Council

May 27, 2014

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