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Mediation as a form of dispute resolution

18th November 2010

Jonathan Djanogly sets out the Government's support for mediation as a form of dispute resolution for commercial and private disputes, including family disputes.

I am very grateful to Karl (Dr Karl Mackie CBE, Chief Executive of CEDR) for inviting me here this evening on the occasion of CEDR’s 20th Anniversary Awards.

It is important to recognise the work of mediators, law firms and other organisations in resolving conflict, often in very difficult and emotive circumstances. The recipients of these awards this evening are excelling in their field and are building the profile of the profession every day, although in a modest, understated way. And it is absolutely right that the winners are recognised for what you have achieved, and to be congratulated by your peers. It is through your creativity, practice and results that we can change how individuals resolve their disputes. We now need to work together to build the case for mediation and other forms of dispute resolution so that it is adopted by the many and not just the few.

It is true that court is still often viewed as the place to resolve conflict, whether it is a contractual disagreement between two companies, or neighbours with a boundary dispute. But too often it is seen as the first resort rather than the last. People can find themselves embroiled in lengthy and often stressful court actions when their disagreements might be better resolved between themselves at a much earlier stage and with a better result.

But I think we’re beginning to see a shift. Awareness of mediation is growing, albeit slowly, and with the financial situation forcing us all to tighten our belts, the benefits of avoiding costly, distressing court actions cannot be overplayed.

Individuals must play a greater role in resolving their problems. I am convinced of this. Our courts are the arbiters of the law, and this is right. But the intervention of the court should only be sought when a genuine point of law exists, or there is a threat to a persons’ liberty or security. They should not be used as arenas of conflict, argument and debate when a more mature and considered discussion of the issues at hand between parties could see a better outcome for them. We have become a litigious society. And the increase of ‘no win, no fee’ arrangements has made it relatively easy to seek redress through the courts for a perceived injustice.

This, of course, raises some fundamental questions about how, and when, we achieve redress. We must consider what, as a society, we want to use our justice system, and be clear about the role each of us plays in taking responsibility to resolve our own problems. This must include views about the role of the courts in this country.

As well as personal congratulations to the recipients of this evening’s awards, I would also like to pay tribute to our hosts CEDR who have played an important role in helping develop the role of mediation in our country. It is through events such as this evening’s ceremony that awareness of mediation will grow. So well done to CEDR.

Government has also played its part in building the profile and use of mediation. On the past two occasions that these awards have been held, the Ministry of Justice has been a recipient – in 2006 for the National Mediation Helpline, and in 2008 for the Small Claims Mediation Service. These awards demonstrate the importance that the MoJ already places on mediation – but progress has arguably not been fast enough, and we must now build on this.

I appreciate though, some of the more cynically minded may think that I, and the rest of government, are recent converts to mediation, and that it is seen simply as a means of delivering savings and pushing people away from the justice system.

This could not be further from the truth. In fact, just the other day, someone drew my attention to comments I made in January 2005:
'People with disputes need to know that there are a range of services, options and sources of advice open to them, which are easily accessible and understood. But it means changing the way we do things quite considerably. It means taking responsibility for disputes instead of expecting the courts to sort it out. It means listening to another point of view.'

I couldn’t have said it better!

So, what does the future hold for alternative dispute resolution services?

By now you will all have seen that the Ministry of Justice has to deliver savings that equal 23% of our overall budget by the end of the Spending Review Period. Savings of this nature are essential as we try to build an economy for the future and so that we can cut the deficit to ensure that we spend our money on public service, not interest payments.

You will also have seen this week that we have published proposals for reforming legal aid. I don’t plan to go into the detail today, but can assure you that this has involved making tough decisions about the role of the state in helping citizens resolve their problems. I can say though that the government has decided that funding for family mediation will remain.

We could have considered cutting this, in effect saying that the state should retreat from all but the most important and essential services. But this would be to miss the point. This is not a debate that is just about resources, but how we want the justice system to operate in a mature and modern society.

Government needs to redefine its relationship with the private sector, which has a responsibility as well. Mediation providers need to make sure they are providing a high quality service for all and build relationships across their communities. With schools, places of worship, advice providers, GP surgeries as well as courts. And MPs too need to be more aware of the hundreds of mediation possibilities that are probably situated in their own constituents’ case files. I will be writing to all MPs very shortly about this.

To consider some of these issues in more detail, let me turn to some of the areas we are currently looking at.

In respect of Family Justice, for example, such an approach means thinking about the real needs of individuals when they are dealing with some of the most emotive issues they will ever confront, be it the breakdown of a relationship or access to their children.

We have to ask ourselves whether decisions about contact and residency of children are best made in a court by a judge or by the parents themselves in a properly mediated discussion. Evidence shows that mediation in family cases can be quicker, cheaper and provide better outcomes than court for parents, whilst being less stressful for all involved, particularly any children. That is why the appropriate use of mediation is being considered carefully by the current Family Justice Review, chaired by David Norgrove, and which represents the first fundamental consideration of the family justice system since the Children Act 1989. The panel leading the review will make their recommendations to the Government next year.

The Government has been introducing measures to improve knowledge and awareness of family mediation and the benefits it offers. The Legal Services Commission has recently reviewed the exemptions available to solicitors when they consider mediation for legally aided clients. So people who, for instance, may have disabilities or live some distance from a mediation practice are not excluded from being informed about family mediation.

As far as civil justice is concerned, all of Her Majesty’s Courts Service areas in England and Wales already have access to our award-winning Small Claims Mediation Service. This enables over 90 per cent of mediations to be conducted over the telephone, saving the parties the time and expense of having to travel to court. The service continues to receive excellent feedback – of more than 7,000 users that have responded to the online survey, 98% are satisfied or very satisfied with both the professionalism and helpfulness of the mediators, and 94% say they would use the service again.

It is encouraging to note that major high street retailers, travel companies and utilities have become repeat users of small claims mediation. It gets cases off their books and settles disputes with their customers in a speedier and more satisfactory way than the alternative court process.

For higher value disputes, we also have the National Mediation Helpline, which can give ready access across England and Wales to Civil Mediation Council accredited mediation providers such as CEDR.

Of course, we need to do more to get people to use these services. I can confirm that next year, we will be bringing forward proposals to build on the success of small claims mediation. We intend to outline how we can increase the number of people taking advantage of this quicker and cheaper way of resolving their dispute.

We also want to do more to ensure that people understand the full range of dispute resolution options available to them. In this, I believe the legal profession has an invaluable role to play, by supporting people in taking a less adversarial and a more collaborative approach to solving their problems. This goes to the heart of what the Master of the Rolls was calling for in his Gordon Slynn Memorial lecture last week – that we need to do more to educate and raise awareness of the benefits of mediation; to enable both professionals and their clients to make informed decisions about the suitability of mediation to their disputes. He also spoke of ‘facilitation’ – “providing the means by which mediation can develop.” I agree. The Ministry of Justice has already gone some way to facilitate mediation, not least through the successful Small Claims Mediation Service, and the National Mediation Helpline. But I fully acknowledge that we need to do more to create the right environment where mediation will grow.

As a result, I can announce that I will be re-launching a new and improved version of the ADR Pledge. Since 2001, all Central Government departments and agencies have been required to use ADR solutions in appropriate cases. Last year this approach provided estimated overall savings of over 90 million pounds to government.

I believe that the Government should continue to lead by example in this way. However, in renewing the Pledge next year, I would also like to promote the wider benefits of ADR by seeking to encourage both local authorities and businesses to make a similar commitment to using ADR in appropriate cases. And I am delighted that both the CBI and the British Chamber of Commerce have agreed to work with us to develop the pledge over the coming months.

I am sure you will agree with me that we need to make it easier for people to access mediation. We need to increase awareness so that consideration and take-up of mediation services happens early to help individuals to understand the options that are open to them.

Together we can create a civil and family justice system that serves the public more effectively and offers greater value for money. I realise this is a big task but by working together we can change traditional attitudes to resolving disputes for the benefit of individuals and our courts. I look forward to working with you all to achieve this.


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