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Civil Litigation Section

Mediation in uncertain times: CMC annual conference report

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Jonathan Hayden-Williams reports back from the Civil Mediation Council’s (CMC) annual conference.

The CMC annual conference was held this year on 16 May in Birmingham. It was an informative and inspiring day.

Dr Sue Prince of Exeter University gave the first presentation, about her research into use of mediation in the justice system. She has a wealth of data and knowledge from the UK and abroad, which anyone with responsibility for the administration of civil justice would do well to tap. Settlement rates using mediation are in the order of 60-70 per cent, yet one study of court users in England and Wales found that only 23 per cent had used it, 43 per cent were aware of it and 34 per cent had not even heard of it.

Given the quicker, cheaper and usually better outcomes from successfully mediated cases, a huge opportunity has, in the recent past, been missed by those who are responsible for the funding and administration of civil justice. Lord Justice Briggs’ proposals for change seem to recognise this, and one hopes to see early implementation, with mediation an integral part of them.

This was followed by inspirational talks from Karl Cockerill and Catherine Anderson, who have trailblazed mediation as a means of resolving workplace disputes and grievances, in the NHS and local government. Given the cost savings and lost working time which they reported, as well as better outcomes, it is a model which needs to be replicated throughout the country. It shows that the solution is not always more funding, but sometimes cleverer use of existing resources. However, it needs enthusiastic and determined people like Karl and Catherine to get the message across.

There were four skills workshops, of which, sadly, time allowed delegates to attend but two.

Ian Marsh’s workshop on resolving disputes in family businesses revealed the particular aspects and issues of that fairly distinct area of practice. With the usual minimum number of parties being five and the need for all to have their say in private, initial meetings with the mediator, the model of the one-day, time-limited mediation is not a practical option. The fact that the participants’ personal and business lives are essentially one and the same, means that emotional issues cannot be separated out from the business ones. A vivid example given was of family members who were not on speaking terms, arranging to meet at an expensive restaurant, on the basis that they would be on their ‘best behaviour’ at such a location. Wrong – they were asked to leave before they had finished their starters.

In a panel discussion of crisis points in mediations, Colin Manning, Mark Mattison, Jane Player and David Richbell, mentioned various issues they had encountered, including:

  • where someone unexpected arrives at a mediation and a request is made for them to take part
  • a lawyer for one of the parties states that their client does not wish to take part in a plenary / joint session
  • when a party addresses the other party in a rude and bullying way during a plenary / joint session
  • a request to the mediator from the parties to give a written ‘neutral evaluation’ of the legal merits of a case if the mediation breaks down.

No ‘right answers’ emerged during the ensuing discussions, though it seemed common ground that a plenary / joint session is highly desirable, even if private meetings with the parties are first needed to agree ground rules, allay concerns and provide some coaching. There was common discomfort about a mediator being expected to deliver a neutral evaluation at the end of an unsuccessful mediation, as it was felt likely to lead the parties to be less open with the mediator – perhaps increasing the chance of the mediation not succeeding.

There were good reports of the two workshops I was not able to attend:

  • ‘Elder and vulnerable adult mediations’, given by Craig Ward
  • ‘Costs in mediation and mediating costs’, given by Deborah Burke.

After tea, Charles Sowden gave an informative presentation on ‘Securing your online presence’, with a myriad of useful tips on websites, social media and online security. Some examples follow.

  • A website is vital and should be ‘broad and shallow’, not ‘deep and narrow’. This was a reference to the structure of the website, rather to any shallowness or depth of the content! Users should be able to get to the relevant material in no more than two clicks
  • Always index with Google and check with them what search terms people are using in your area of expertise
  • Start with LinkedIn. Have a time budget and a business strategy. Aim to make 10 posts a week: five of others’ content that is relevant to your business, three created by you as to your business, and two personal to you, to humanise your image.

What is sometimes referred to as the ‘tail end Charlie’ slot was filled by Stephen Ruttle QC, who not only had the challenge of speaking last, but also of being a late ‘super sub’ for Bill Wood. To no one’s surprise, Stephen rose to the challenge, delivering a persuasive and inspiring talk on difficult conversations in mediations and the importance of opening a channel of direct communication between the parties. He likened his different roles to those of ‘major or midwife’, looking into the future to focus on the latter by building in time for more conversations. His quote from Longfellow remains etched in the mind: ‘If we could read the secret history of our enemies, we should find in each man’s life sorrow and suffering enough to disarm all hostility.’

Having been opened in good humour by Colin Manning and Sir Alan Ward, the conference was closed by them in the same vein.

Jonathan Haydn-Williams is solicitor and senior counsel at Goodman Derrick, fellow of the Chartered Institute of Arbitrators and a CMC registered mediator.

This article first appeared in the May 2017 Goodman Derrick newsletter (gdknowledge.co.uk).

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