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In Place of Strife

The Mediation Chambers

Creating Confidence in Mediators and the Process: an Exploration ot the Issues, by Henry Brown

 

This article was written for the Chartered Institute of Arbitrators’ Mediation Symposium 2010

ASSUMPTIONS AND QUESTIONS

The 2010 Conference topic “Creating confidence in mediators and the process” contains some implicit assumptions and raises important issues for consideration. f one encountered a conference topic entitled “Creating confidence in lawyers and the legal process” one might well assume that there was some kind of crisis of confidence that needed attention: a root and branch examination as to the causes of the lack of confidence and an exploration as to what might need to be done to the legal process and the profession to gain or regain public confidence.

Similarly, the reference to a required act of “creation” of confidence in mediation and mediators assumes a lack of confidence in the process and its practitioners that would benefit from a fundamental examination.

As mediators, many of us may believe that the mediation process is an ideal way to resolve most disputes and that if only litigators and disputants realised this, there would – and should– be a huge increase in the volume of mediation. There is, of course, a truth in this (writing as a mediator); but there are also other truths, which we need to understand if we are to inspire confidence in the process. Perhaps the case of Halsey v Milton Keynes General NHS Trust1 can help provide some clues both to the value of the process and the reservations that many litigators may have. The aspect of the judgment relating to the circumstances in which a failure to mediate may result in costs sanctions was based on the Law Society’s submissions as to the reasonableness or otherwise of a refusal to mediate; and those submissions had to be approved by both the Society’s ADR Committee (as then constituted) and its Civil Litigation Committee – hence it contained a balance between practitioners committed to mediation and litigation lawyers who would be directly affected by the decision.2 One of Halsey’s fundamental findings, adopted from the Law Society’s submissions, was that “mediation and other ADR processes do not offer a panacea, and can have disadvantages as well as advantages: they are not appropriate for every case.” The creation of confidence

 

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