The government's mediation plans haven't been thought out

In 2002 my local county court judge asked the Devon and Exeter Law Society, of which I was the vice president, to assist small claims litigants because the court had been unable to cope with the very large increase in litigants in person brought about by the raising of the small claims limit.

We offered to provide small claims civil assistance advice for litigants in person but the presiding judge of the Exeter Group of Courts explained that while such a scheme was approved in principle, the court required society members taking part in the scheme to be trained as mediators and to undertake mediation for small claims litigants.

So the society laid on a day's training for civil mediators, undertaken by Andrew Frayley, an expert in time-limited mediation whose model provided for mediations to last three hours. We asked him whether it would be possible to mediate in less than three hours. He said it should be possible and it was in the light of that training and his reassurance that, on a day in July 2002, I found myself at Exeter County Court being introduced by District Judge Jill Wainwright to litigants who were in her small claims list that day.

By the end of the morning, I had undertaken five small claims mediations with satisfactory results. The Devon and Exeter Law Society small claims mediation scheme had come into being. It ran for some six years; we mediated a total of 1,000 cases and settlement was achieved in 600.

In 2004, the Exeter Group of Courts, under pressure from the Lord Chancellor's office, instituted a main court mediation scheme and the presiding judge decreed that Devon and Exeter small claims mediators who had undertaken five days' mediation with satisfactory results would be deemed to be eligible for mediating in the main court scheme. The scheme was to provide mediation for litigants in the main court with a time limit of three hours. In addition to the Devon and Exeter Law Society's mediators, mediators were provided by all the usual mediation providers including CEDR and ADR.

A review of the first year's results showed that where Devon and Exeter mediators and ADR chambers mediators from Taunton had produced a very satisfactory level of settlements. Other mediation providers were not so successful and some well-known mediation providers were falling far behind with their settlement rates. As a result, the court was minded to review their inclusion on the list of accredited mediators when the then Department for Constitutional Affairs closed the Exeter main court mediation scheme and started the now discredited helpline.

The Devon and Exeter Law Society's mediators continued to provide mediation services in the main court scheme when required, but the number of referrals was very small. The statistics, I believe, also showed that a large number of telephone enquiries only resulted in a very small number of references to mediation and the settlement rates of those cases which were referred to mediation were well below the settlement rates achieved by our mediators.

The society, however, continued to provide small claims mediation services for the Exeter Group of Courts until May 2008 when our scheme was declared closed and all mediations were referred to an in-house mediator scheme based on the Manchester model. The Devon and Somerset Law Society, as we now are, has tried on a number of occasions to be allowed to assist the courts in providing mediation services in addition to the telephone helpline and the small claims in-house mediation scheme, but on each occasion the offer has been declined.

Central control

I went to London in November 2010 for an interview with the head of mediation services at the Ministry of Justice and was advised that although it was accepted that the in-court mediation scheme wasn't working properly, any future scheme would have to be centrally controlled, this being a matter of policy. Efforts to change the ministry's mind both through our local MP and several members of the House of Lords failed.

It was particularly galling because I genuinely felt and still feel that the small claims scheme provided by the then Devon and Exeter Law Society in fact provided a much better service to the litigating public than the telephone mediators favoured by the MoJ. I had, and still have, reservations about the statistical evidence claimed, particularly because if the in-house mediator telephones a litigant and offers mediation services which are declined, my understanding is that these statistics don't figure in the records kept by the mediators and used by the MoJ. So, despite a high claim of settlement rates (similar in fact to the Devon and Exeter Law Society's settlement rate) a lot of important data seems to have been routinely excluded.

It now seems that in the push to shorten court lists and divert cases from the courts, the government is prepared to accept external mediators in addition to the small claims mediation provision by telephone. Therefore the central tenet of the objection to Devon and Somerset Law Society providing small claims mediators in addition to the telephone mediation service seems to have been changed.

Ken Clarke is also seeking to force parties to go at least to a mediation information session and my society, along with many other providers, will no doubt be happy to provide that service. But it seems to me that this is again the thin end of a wedge and that parties in the county courts will eventually find themselves channelled through mediation before the issue of proceedings, as is now happening in the matrimonial ancillary relief and children cases under changes brought about by the MoJ last year.

No suitable structure

I am particularly concerned that unless something is done pretty quickly the changes will come in without there being a suitable structure to meet them. There is a particularly appropriate model of what can happen in Italy. I understand from Italian friends that the Italian government recently passed a law requiring all parties to go to mediation. What hadn't been required, however, was that a specific mediation scheme was set up or specific mediators were allocated. I gather from Italian lawyers that without them receiving any training, they assumed they knew what mediation was and how to go about it and set about creating their own mediation scheme but without basic training. This has apparently created a certain amount of chaos and, when I explained the English position at a conference in Venice in September last year, I was asked to allow my name to go forward as a mediation trainer for the Italian Ministry of Justice.

What concerns me about the English situation is that, unless something is done to train not only mediators but also advocates in the specialities of time-limited mediation, the unhappy situation brought about in Italy may be repeated in England.

Most mediation trainers now provide time-limited mediation training courses but it seems that the basic model which comes from America, I think, was set at a mediation lasting eight hours, whereas the court is likely to require mediations to last no more than three hours unless the parties agree otherwise.

I know a lot of eight-hour-trained time-limited mediators are uncomfortable with a shorter length of mediation but our experience has shown that it is perfectly possible. Indeed our experience at the small claims court showed that undertaking mediations lasting between 30 and 45 minutes in the small claims court provides mediators with an unrivalled opportunity to hone their skills and the model created by the Devon and Exeter Law Society back in 2002/04 would be an ideal pattern for future mediation schemes.

A lot of lawyers regard mediation as an unnecessary and expensive stage in the litigation process but properly conducted mediation can be a very effective way of resolving disputes. As a practitioner I find that the techniques I have acquired in undertaking mediations have been a great help in my general practice and I am able to give better value to my clients.

The best mediation schemes are those created and run locally to the courts they serve and manned by local mediators, rather than a centrally controlled system with mediators 'bussed in'. I discussed this view with Sir Henry Brooke some time ago and I think he was inclined to agree although I don't know that the CMC would. The Exeter main court scheme showed clearly that mediators from out of the area had no insight into local conditions and attitudes, and were at a disadvantage in trying to help parties settle. The larger mediation providers involved in the local scheme failed to resolve 60 per cent of the cases allocated to them, saying, as has happened at the London County Court, that they didn't have enough time.

As a profession we can't prevent the MoJ moving the goalposts but we should try and take advantage of this new proposal and prepare ourselves to assist the ministry in creating the scheme that now appears to be government policy and have considerable input into its design so that it works from day one.