The men from the boys
10 September 2001
11 April 2014
English Commercial Court enforces obligation to resolve disputes by friendly discussion prior to arbitration
8 July 2014
3 December 2013
7 April 2014
10 April 2014
In some ways, the fledgling mediation profession is a victim of its own success. The dramatic increase in its popularity in the last two years, fuelled by the Woolf reforms, has led to an explosion in the number of professionals offering their services as mediators.
At present, anyone can put themselves forward as a mediator. There are as many as 60 organisations offering mediation services. Training, which is not compulsory, is available from a range of commercial and non-commercial bodies and can vary widely in its range and methods. The potentially bewildering array of options has led to calls within the mediation community for some degree of standardisation of training and quality.
This autumn, the Law Society is launching an accreditation scheme, which for the first time will provide an across-the-board quality standard for mediators, albeit limited, at least initially, to solicitors.
Samret Palmer, the Law Society's alternative dispute resolution (ADR) policy adviser, believes that the introduction of the Civil and Commercial Mediation Panel will play an important role in promoting high standards and public confidence in mediation. "We get many queries from the public and solicitors," says Palmer. "People hear about mediation, but it's difficult to know who to turn to, what training mediators have had and what level of service to expect. Solicitors repeatedly ask where to go to find someone of guaranteed quality."
Once the accreditation scheme is up and running, firms that satisfy the Law Society's quality standard will be included on the panel. Membership details will be freely available from the Law Society and published on its website. Panel membership will not be compulsory, but the Law Society hopes that market awareness will effectively ensure that any solicitor wishing to practise as a mediator will seek accreditation.
"Anyone who needs a mediator can go directly to any of those listed," explains Palmer. "What we're doing is guaranteeing quality-assured mediators."
But not everyone believes that mediation lends itself easily to standard practices. Flexibility is regarded as a key factor in the mediation process, with the choice of mediator and the technique adopted usually dependant on the circumstances of each case. All agree that training, although important, does not necessarily make a good mediator.
David Shapiro, head of SJ Berwin's ADR group and a co-founder of a group of highly experienced commercial practitioners, the Panel of Independent Mediators, is firmly of this view. Shapiro, who lectures on ADR, says: "I can't teach it in the classroom - you're either born with it, learn it from another discipline or get it from witnessing it over and over again." Some may be naturals, he says, while others will never acquire the necessary skills.
Shapiro believes there is a current fad for professionals to make themselves eligible as mediators, often because of perceived peer pressure or through less-than-busy litigators looking for a home. He has reservations over the effectiveness of any attempt to set a common standard. "You will be promulgating a minimum standard - a lot of people will be saying, 'I have this qualification', who couldn't find the doorknob with either hand."
Notwithstanding such concerns, mediation providers have welcomed the Law Society's initiative. Michael Lind, head of case management at ADR Group, says that the scheme will benefit all mediators. He believes standards are consistently high, but feels that there is a need to prevent any perception of "mavericks jumping on the bandwagon". ADR Group will be encouraging its mediators to join the panel. "Anything that has the effect of increasing public confidence in using mediation has our full support," says Lind.
John Gunner, director of commercial mediation services provider Intermediation, does not think the number of available mediators is a cause for concern. "I've heard people saying mediators are cropping up everywhere, but I don't think it's running out of control," he says. "I'm not aware of any quality issues at the moment." He sees the Law Society scheme as a positive sign that the legal profession is embracing all aspects of the dispute resolution process. "A lot of mediators are from a legal background, and the Law Society is simply recognising that fact," he explains.
Palmer describes the Law Society's standard - which has been developed in consultation with established mediation providers such as the Centre for Effective Dispute Resolution (Cedr) and ADR Group - as "rigorous." The Law Society is working to match its standard against those established by the leading providers.
"We're not looking to reinvent the wheel," says Palmer, adding that mediators with existing accreditation from organisations recognised by the Law Society may qualify automatically through what is known as "the passported route". Palmer stresses that there will be some flexibility: "If someone approaches us who's been trained by an organisation which has not been recognised, we'll consider that person's training and experience."
If experience is a key part of the process of developing effective mediation skills, a problem for aspiring mediators is how to acquire this in circumstances where there are a limited number of mediations to go around. Palmer explains that the Law Society scheme, which operates a two-tier panel system, is intended to assist in this. After undertaking approved initial training, applicants can obtain what is known as 'general membership'. They then have two years to build up a further 65 hours of training and experience to become eligible for full accreditation as a 'practitioner member'. Increasingly, mediation providers are recommending experience be gained through 'mentoring', or sitting in with experienced mediators, which is a concept embraced by the Law Society proposals.
But even with such assistance, there are those who believe that the emergence of an exclusive upper tier of mediators is inevitable. Lind points to the experience in the US, where an established core of about 100 mediators is regarded as the elite. "There are signs this is already happening here," says Lind, who highlights the creation of the Panel of Independent Mediators, which he says is already considered the "crème de la crème" in this country. According to Shapiro, this is a natural function of the market, as it is with most services. "I'm a believer in the great leavening process of the marketplace," he says, adding that, when it comes to standards, "basically, the market knows".
While welcoming the Law Society scheme, some mediator service providers are concerned that, in setting a standard for solicitor mediators only, this does not go far enough. Adam Gersch, managing director of Global Mediation, points out that 50 per cent of the mediators on his panel are non-lawyers. "Lawyers don't necessarily make the best mediators," he says. "We have several senior partners who bring gravitas and respect, but mediators require sensitivity and inter-personal skills, which are often found in other professions." He believes that some form of regulation of the mediation profession is needed, but thinks it should extend to all mediators. "This is a great scheme for lawyers - I look forward to the day it can be applied across the board," he enthuses.
There have been discussions within the mediation community for some time over whether a general Kite mark standard of quality and ethics is needed, but these have stumbled on the identification of an appropriate body to oversee the execution. David Griffiths, deputy secretary-general and director of operations at the Chartered Institute of Arbitrators, believes it is "common sense" that there should be an overarching organisation to take responsibility for standards and regulation generally; but as yet no suitable candidate has come forward. "Mediators are searching for an institutional home," he says.
Lind sees regulation as the way forward. "I'm not really concerned who operates this, as long as someone does," he says. Lind is happy that the Law Society has taken a lead in respect of solicitor-mediators, and he sees no reason why something similar should not spread to the rest of the industry.
But with the industry still in its infancy, others believe it is still too early for talk of regulation. "It seems to have regulated itself quite well to date," says Gunner. "The industry's not fragmented enough for regulation."
According to Palmer, the Law Society is willing to discuss the possibility of extending its accreditation to other professions. There are suggestions that this could work in a similar way to its directory of expert witnesses, which is 95 per cent lawyer free. But, says Palmer, the Law Society has no interest in undertaking a regulatory function for mediators generally.
In the circumstances, it seems that however successful the Law Society scheme is among solicitor-mediators, it is likely that the debate over the need for across-the-board standards will continue. To resolve this, Gersch suggests "one big mediation".