Why mediation is the way of and for the future

Mediation in a nutshell

• Mediation is a voluntary, confidential, without prejudice process in which parties try to reach a practical, consensual solution rather than focusing on whether a party was ‘right’ or ‘wrong’.
• Mediation draws from a variety of disciplines, which include but are not limited to principled negotiation, non-violent communication, psychology and the principles of alternative dispute resolution (ADR).
• Mediators are neutral third-party facilitators of a process. They encourage parties to recognise and engage with the emotional aspects of a dispute so as to broaden the range of options for agreement.
• Most mediations follow a typical structure: a combination of open (plenary) meetings in which all parties are present, as well as private and confidential meetings (caucuses) between individual parties.

What does it mean to have one’s ‘day in court’?

The often unmet expectations associated with this term form one of two strands of reasoning which underpin the growing popularity of mediation as an alternative dispute resolution (ADR) method. Claimants in civil cases often envisage using the court process as an opportunity to openly express their grievances or to prove that something, or more commonly someone, was ‘right’ or ‘wrong’. In reality, however, written witness statements often take precedence over areas of high emotional value in civil trial processes. Mediation fills this gap between expectation and reality by providing the parties with an opportunity to identify the true interests within their positions, which otherwise may appear incompatible. This can then support the restoration of relationships where appropriate. Moreover, mediation fills this gap efficiently. Herein lies the second strand of reasoning for the growing popularity of mediation: efficacy.

Efficient dispute resolution

In the most recent Centre for Effective Dispute Resolution (CEDR) audit on the use of mediation in the United Kingdom, findings showed that commercial mediation currently saves British business approximately £2.4 billion a year by achieving earlier resolution of cases as compared with the costs of litigation. The data submitted by mediators showed that roughly 75% of their cases settled on the day, with an additional 11% settling shortly thereafter. This makes an aggregate settlement rate of approximately 86%.

An adjunct and an alternative to litigation

Mediation continues to garner respect in England and Wales as a cost-effective and parties-centric method of dispute resolution. Courts have more readily granted orders in favour of ADR as part of a more intensive focus on case and costs management. This trend extends to continental Europe, notably with the Mediation Practice Directive, as well as to Australia and the United States.

Since Lord Woolf’s reforms to civil procedure helped to highlight the symbiotic relationship between civil justice reform and ADR, mediation has become deservedly entrenched in the legal landscape. The credibility of ADR among top law firms is easily shown through the renaming of their litigation practices as dispute resolution departments. Its proliferation is also due to the diversity of contexts in which mediation is used. The divide between civil/commercial mediators and family mediators fails to encompass the wide variety of ways in which mediation is being championed as a means of fostering creative and consensual resolution of disputes. Workplace mediation, community mediation and peer mediation schemes are all prime examples of the transferability of this skillset.

Why become a mediator?

It is perhaps due to the cross-applicability of mediation that for the first time to date, CEDR has reported that there are now more mediators from non-legal backgrounds than there are from legal backgrounds. Its versatility can also be shown with reference to the United Nations, for which mediation is an important tool in resolving conflicts around the world. The UN Department of Political Affairs established its very own Mediation Support Unit in 2006.

For the aspiring lawyer, mediation should not only be viewed as a ‘gold star’ on their training contract/pupillage applications, but also as a fundamental skill. Mediation training is a means of developing the communication and client-facing skills at an earlier stage than would otherwise be possible. For these reasons, among others, the King’s College London Pro Bono Society launched a mediation project in conjunction with the Society of Mediators at 218 Strand, a registered charity with the aim of promoting for the public benefit the use of mediation as a real alternative to litigation in conflict resolution.

As part of this project, King’s College London students train to become accredited civil and commercial mediators, of which the university now has approximately 100. Many students go on to practice as peer mediators as well as to seek out career opportunities in dispute resolution. This academic year, the university will launch a mediation clinic through which these newly accredited mediators will offer their services to the public on a pro bono basis.

Pro bono mediation currently represents an important 10.4% of the mediation market. This work is done by a combination of newly qualified mediators who are eagerly seeking experience, as well as community mediation schemes which operate on a charitable basis. ‘LawWorks’ is an example of a free mediation service in the United Kingdom for parties with limited means in civil disputes.

Mediators also benefit from a variety of mediation networks such as In Place of Strife and Independent Mediators, which aim to pool resources and expertise. Newly qualified mediators in particular may be attracted to the mandate of the Young Mediators’ Group, which organises an array of workshops and panel discussions.

Mediation will continue to evolve as a means of dispute resolution. Its importance is growing in the United Kingdom, wherein courts have made costs orders against parties who unreasonably refused to mediate, as well as internationally in resolving cross-border disputes where parties find themselves subject to the laws of unfamiliar jurisdictions. More broadly, mediation’s appreciation of the sources of conflict, consensus building and structured negotiations enables parties to retain ownership of the outcome of their dispute. Young people, and especially aspiring lawyers, stand to benefit from an understanding of how to generate mutual gains in the production of future-focused solutions.

Alice Munnelly is president of the King’s College London Pro Bono Society.