Map to mediation
17 October 2011
Paul Randolph lays out a roadmap for a new mediation world.
The mediation landscape for the Bar is likely to change dramatically over the next twelve months.
The Government is proposing to introduce reforms of the civil justice system in England and Wales which are intended to significantly increase the take-up of mediation, and barristers are likely to be the principal beneficiaries – as well, of course, as the public.
The Government’s proposals for these reforms were first revealed in a consultation paper in March this year. The consultation process ended in June, and the proposals are due to come into effect in at the end of October this year and April 2012. If implemented, it is believed that the proposed changes to the way the civil justice system operates in the County Courts could increase the number of mediations by as much as eight times.
Upping the stakes
The Ministry of Justice’s proposals will essentially increase the upper limit in small claims cases from the current limit of £5,000 to £10,000 or £15,000, or possibly as high as £25,000. They will then make all small claims cases subject to “automatic referral to mediation” – or in plain language, compulsory mediation.
The proposals will also increase the upper limit of all other County Court claims to £100,000, or possibly higher, and render these subject to compulsory referral to a mediator for a ‘mediation information session’. They also renew the Government pledge, made first in 2003, for all Government organisations to mediate before they litigate.
As if this were not sufficient innovation, the Government will also introduce has now introduced alternative business structures, whereby legal practices will can change the way they deliver legal services. Members of the Bar will be are now able to form partnerships and other alliances with solicitors, accountants and other non-legal professionals.
Barristers as in-house mediators may prove to be a substantial attraction to law firms, architectural practices, accountancy firms, and other organisations. Some refer to these proposals as the “Big Bang” of the legal profession.
The chairman of the Bar has recommended that barristers “re-invent themselves” in order to meet the financial strictures facing them. Becoming increasingly involved in mediation is one way of achieving this, and these changes will provide the Bar with considerable opportunities to further serve the public.
Parties in dispute find the prospect of a barrister mediator highly attractive. They see the barrister as bringing to the mediation a mix of authority, experience, and an array of forensic skills. Those parties believing strongly that they have a cast-iron case will perceive a barrister mediator as potentially a robust advocate who will effectively argue their case with the other side.
They will expect the barrister mediator to use his or her proven forensic analytical skills to instil sense and reason into their opponents’ views, and thereby bring about a swift end to frustrating and time-consuming litigation. Those, on the other hand, with a plethora of perceived weaknesses in their case, will hope that their barrister mediator will deploy his or her well-honed negotiating skills in brokering a good deal for their client.
The well-trained barrister mediator will refrain from ramming down the client’s throat the fatal flaws in the case, but instead will devote all energies to facilitating a successful and dignified exit from worrying litigation.
Barristers also have a profound and authoritative knowledge of the potential pitfalls and other unanticipated traps of litigation, and they are best placed to form a realistic view of the strength and weakness of the competing arguments.
These qualities make barristers the first port of call, not only for the parties, but also for their professional clients when seeking a legal adviser to attend at a mediation alongside their client. Barristers who perform well in the cut-and-thrust of adversarial advocacy are no less able, when properly trained in mediation skills, to be empathic, non-confrontational and collaborative in mediation.
The barrister who is wholly conversant with the mediation process and fully understands the techniques and tactics adopted by the mediator is best placed to secure the most beneficial outcome for the client. Such a barrister can usefully assist the client in advising throughout the mediation process, proficiently analysing offers, carefully assessing counter-offers, ably devising creative settlements which are palatable to all parties - and authoritatively drafting the settlement agreement.
The Bar has traditionally shown itself well able to adapt itself to change. Sir Henry Brooke, chair of the Civil Mediation Council, has stated that this is the year that “mediation comes of age”. This new era in mediation will be a challenge, but barristers can rise to this challenge, and show themselves to be at the forefront of innovation.
Paul Randolph is a barrister at Field Court Chambers