Solicitors are still not accepting mediation as a method of dispute resolution – that was the view from business at the Centre for Dispute Resolution at its conference last week.
At the CEDR awards – in which Baker & McKenzie won the legal category for taking “ADR into the heart of its firm” – Lord Alexander of Weedon QC, chair of National Westminster Bank, told assembled lawyers and judges: “I am doubtful whether the legal profession has yet moved to wholehearted acceptance that there must be radical change.”
Bill Pearce, a personal indemnity claims lawyer working in-house for insurance company ITT, said that despite the fact that at any one time he had around 10,000 claims outstanding, in the seven years since mediation had been available, “we have managed to bring only 22 cases to mediation. Claimants' solicitors are still uneasy about it.
“It's difficult to say why they refuse,” he said. “The most frequent reply is: 'My client doesn't want it.' That's no explanation at all.
“You can't help wondering if they're worried about loss of fees. There might also be a confusion of mediation with arbitration, which is completely different.”
But he added: “I have no doubt that in five years' time all solicitors will be fully backing ADR, especially if Woolf's reforms do come in.”
The Lord Chief Justice, Lord Bingham, said: “There is still concern about appearing to be weak if one offers to participate in ADR processes.” He said judges could help potential litigants “save face” by encouraging them to go to mediation.
Barclays Bank also received an award for its policy of requiring personnel in its legal department to consider the use of ADR at all stages of the litigation process.
A surprise intervention came just before the award was presented to Barclays Group general counsel Howard Trust. Brian Jones, a member of the shareholders' pressure group Shareholders Against Financial Exploitation, stood up.
To cries of “Sit down!” and “Shut up!”, he said: “I've sat on the AGMs of Barclays for four years asking them 'please go to CEDR' and they've refused. Now I discover they're getting an award.”