Where mediation fits in

Recovering from an intensive learning experience

Elisabeth DaviesI’ve recently recovered from attending a course run by the Centre for Effective Dispute Resolution (CEDR) in mediation skills. I say recovered because it was an extraordinarily intensive week during which I learned an incredible amount but, like most adult learning, it’s never easy going to back to the beginning of your learning curve.

I wasn’t alone. There were 24 of us on the course – 20 of whom had a legal background: a mix of practising and non-practising Solicitors or Barristers and a retired Judge too. It seemed like there were two main reasons for coming on the course – either working out whether you could make a career out of being an accredited mediator in the future or developing a much clearer understanding of mediation with a view to better representing your clients when attending mediations with them. What was clear was that everyone saw mediation and the shift from a purely adversarial approach as the future – whether they liked it or not.

The course was a challenge for all of us. Talking to the solicitors and barristers many of them referred to needing to “rewire” themselves, overcoming in some instances 40 years of training and practice. The adversarial process is one of the defining features of our legal system. The lawyer’s role is to present, as persuasively as they can, the law and facts of the case as seen from the standpoint of their client’s interest. The mediator’s role could not be more different. They are not there to judge or arbitrate, to say who’s right or who’s wrong or to impose a solution. They are a neutral and impartial facilitator; there to assist discussions and negotiations; to expand understanding and thereby widen possibilities for settlement.

I was impressed with many on the course, and with their commitment to wanting to better represent their clients at mediation in the future. However, I found myself reflecting on cases involving litigants in person and where mediation could fit into these.

The Lord Chief Justice has already invited debate on whether there should be a more inquisitorial and less adversarial system in such cases and this is certainly a debate the Panel would welcome.

The Civil Justice Council’s report concluded that clear guidance on the duties and responsibilities of lawyers on the other side would help lawyers know what is expected of them, help their clients understand what they are doing, and help the litigant in person know what to expect. An advocate’s duties are first to the court, and then to his or her client, and this might be difficult for the advocate’s own client to appreciate. There is also opportunity for advocates to exploit the lack of knowledge and experience suffered by litigants in person to advance their own client’s interests. The Bar Standards Board has reported an increase in complaints from litigants in person, although these rarely result in a finding of misconduct. It has identified a need for greater public information about the roles and expectations of parties to litigation where one side is not legally represented.

There is a growing recognition that litigants in person are not in themselves “a problem”. As the Lord Chief Justice said in March of this year, the problem lies with a system which has not developed with a focus on unrepresented litigants. Instead, the correct starting point is that litigants in person are “users of the civil justice system, and the system exists for its users”. This should clearly be the guiding principle for future policy in this area – the question is how much of a solution mediation could offer up.