Mediation: the next frontier?

The forthcoming Annual Bar Conference will host a debate on mediation from four perspectives. A judge who approves of mediation but sees no advantage in the aggressive further selling of mediation by the courts or anyone else will put his views across. Then a mediator who agrees that to a certain point it can be oversold but believes the judges do not sell mediation hard enough will have say followed by a barrister who expresses his thoughts on the heavy handed imposition by the courts of mediation on parties. Finally, the views of a solicitor who is cynical about the benefits of mediation and the skills of mediators will be shared. 

The proposed debate is both necessary and familiar, but what about the further perspective of the business case for mediation?  By this, I mean, the client’s perspective.   

One of the core aims of professional practices is client retention. It is the bedrock of all businesses and a contented client is usually a retained one, but affected by the fact that all clients must to their best to mitigate overheads such as professional costs. A fair, cost effective and workable outcome, whether by negotiation or mediation, can and does meet both aims but I have often been surprised by the negativity of some practitioners towards mediation.

To adopt a parallel approach of litigation and negotiation to the exclusion of mediation is often a missed opportunity. After all, while mediation differs from negotiation it can be described, in part, as a form of assisted negotiation conducted under the umbrella of confidentiality. The Centre for Effective Dispute Resolution’s 2007 Mediation Audit statistics show that the mediation market has continued to grow substantially and that four out of five mediations result in a settlement.   

The next stage in the development of mediation must inevitably involve some kind of straightforward central regulation in what is, controversially, an unregulated market.  I can think of two analogies: the unregulated insolvency practitioner market prior to the 1986 Insolvency Act and the debate over the proposed regulation of psychotherapists.

The manner and content of the recent regulatory proposals by the Civil Mediation Council were criticised for various reasons.  Notwithstanding, if I was a client to whom mediation had been suggested, I would like to know some basic information about the proposed mediator, such as their background, the mediation training they had undertaken, the number of mediations undertaken by them on a regular and consistent basis and who the client could complain to should the need arise.

A client might also want to read the feedback received by the proposed mediator, notwithstanding the fact that feedback can be mercurial.  It will be interesting to follow how the feedback initiative of The Mediator Directory progresses. 

The mediation profession is at a crossroads.  All professions develop inevitably towards regulation.  It is perhaps time to stop meditating on the issue of whether to regulate the mediation profession and establish a basic regulatory framework along the bases of information suggested.

 Paul Johnson is a mediator at Kings Chambers