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One of the ConDems great ideas is to force legal aid clients to go to mediation. This already happens-so its not a new idea-but some how or other this time those who are on legal aid will have to complete mediation before even thinking of litigating through the Courts.
The reason for this is that the Government has been conviced by arguments from Mediators and supporters of mediation that it is cheaper, faster and better than litigation.
If you have money then you can avoid the Mediation hurdle and all you will have to say is that you have been told about it, thought about it and rejected it as an option.
I have no problem with Mediation. In effect that is how lawyers (good lawyers) conduct a case. They try to get their client to have sensible, realisable objectives.
Mediators would tell you that clients really love mediation, that if given the chance they would only ever choose mediation and that the reason that more people don't use mediation is because lawyers convice their clients against it because the lawyer will lose a fee. If this were the case then it doesn't really explain the rise in Collaborative Law.
The truth is that many lawyers don't have faith in the ability of Mediators to reach an agreement that is lawful. Experience teaches us that mediation for legal aid clients is a waste of time and a waste of taxpayer's money. There is also a problem created by the fact that mediation training appears not to be accredited by an independent body. I remember meeting one Mediator who told me that she could mediate any dispute at all.
Mediation has its place. Parties who do not wish to mediate should not be forced to do so. Litigation may well clear the air and the ground so that mediation can take place on final minor sticking points.
Mediators keen to promote mediation as being cheaper, faster and more effective (kinder to participants) can produce no research data to support this view. The truth is that Mediators are primarily after a monopoly so they can earn fees. Indeed if Mediation is so good one wonders why Mediators don't offer No Deal-No Fee terms of engagement?
One trait of Mediators is that criticism of mediation tends to result in an "you're only interested in your fee" retort when Mediators are in fact promoting a (compulsory) "alternative" to litigation which has failed to capture the public's imagination. Mediation was discussed in Parliament in 1948 when the Legal Advice and Assistance Bill was progressing through Parliament. It is not a new concept. One imagines that if it was so good that those who had gone through the process would have shouted the Good News from the roof tops and caused Solicitors and Barristers to change their views.
All I want to see is proper, independently accredited training for Mediators, proper evaluation of Mediators and independently researched evidence that it is cheaper, faster and better than litigation.
One would have thought that the Legal Services Commission would by now have gathered data on the effectiveness of Mediation and so could release that data in a report. Indeed they have-but only about In Court mediation, not pre litigation mediation.
There appears to be no evidence that making people go to mediation first will be effective-it is merely an aspiration. But there has been a system in place for a long time whereby those on legal aid had to go to mediation unless exempt. Where's the data?
One of the ConDems great ideas is to force legal aid clients to go to mediation. This already happens-so its not a new idea-but some how or other this time those who are on legal aid will have to complete mediation before even thinking of litigating through the Courts.
The reason for this is that the Government has been conviced by arguments from Mediators and supporters of mediation that it is cheaper, faster and better than litigation.
If you have money then you can avoid the Mediation hurdle and all you will have to say is that you have been told about it, thought about it and rejected it as an option.
I have no problem with Mediation. In effect that is how lawyers (good lawyers) conduct a case. They try to get their client to have sensible, realisable objectives.
Mediators would tell you that clients really love mediation, that if given the chance they would only ever choose mediation and that the reason that more people don't use mediation is because lawyers convice their clients against it because the lawyer will lose a fee. If this were the case then it doesn't really explain the rise in Collaborative Law.
The truth is that many lawyers don't have faith in the ability of Mediators to reach an agreement that is lawful. Experience teaches us that mediation for legal aid clients is a waste of time and a waste of taxpayer's money. There is also a problem created by the fact that mediation training appears not to be accredited by an independent body. I remember meeting one Mediator who told me that she could mediate any dispute at all.
Mediation has its place. Parties who do not wish to mediate should not be forced to do so. Litigation may well clear the air and the ground so that mediation can take place on final minor sticking points.
Mediators keen to promote mediation as being cheaper, faster and more effective (kinder to participants) can produce no research data to support this view. The truth is that Mediators are primarily after a monopoly so they can earn fees. Indeed if Mediation is so good one wonders why Mediators don't offer No Deal-No Fee terms of engagement?
One trait of Mediators is that criticism of mediation tends to result in an "you're only interested in your fee" retort when Mediators are in fact promoting a (compulsory) "alternative" to litigation which has failed to capture the public's imagination. Mediation was discussed in Parliament in 1948 when the Legal Advice and Assistance Bill was progressing through Parliament. It is not a new concept. One imagines that if it was so good that those who had gone through the process would have shouted the Good News from the roof tops and caused Solicitors and Barristers to change their views.
All I want to see is proper, independently accredited training for Mediators, proper evaluation of Mediators and independently researched evidence that it is cheaper, faster and better than litigation.
One would have thought that the Legal Services Commission would by now have gathered data on the effectiveness of Mediation and so could release that data in a report. Indeed they have-but only about In Court mediation, not pre litigation mediation.
"The in court pilot demonstrated some real benefits to clients. Where mediation took place 71% of clients reached some form of agreement.
However, the funding model trialled proved expensive, underlyng the importance of the government's aim to encourage people to consider and use mediation before their case goes to court. We are continuing to look at ways to increase public awareness of mediation and will be consulting upon the current list of exemptions available to solicitors to exempt their clients from the mediation assessment requirement. This may be able to help more individuals to receive information about the mediation process and decide whether this would be a more apprpriate way to attempt to resolve their family dispute."
There appears to be no evidence that making people go to mediation first will be effective-it is merely an aspiration. But there has been a system in place for a long time whereby those on legal aid had to go to mediation unless exempt. Where's the data?
This is in interesting post. Great title!
ReplyDeleteFrom across the pond I can tell you that the reason mediators in U.S. don't offer no deal-no fee arrangements is because they are considered unethical. Contingent fees place an interest in the outcome of the mediation in the mediator, who is supposed to remain neutral, so I support that prohibition. All mediators want the matter to resolve, as a matter of professionalism.
Your mention of mediators' scope of practice also caught my eye. I am one of those mediators who contends that I can mediate any dispute because of the mediation skills I bring to the table. If the parties want an evaluative mediator who will tell them whether their case will win in court, I limit my mediations to subject matters with which I am intimately familiar. If it is a more typical interest-based mediation, in depth knowledge of the legal field involved is not required. I liken the situation to lawyers and parties trying to convince 12 jurors of the wisdom of their position. I believe I have the ability to provide at least as much substantive knowledge as jurors. Plus, I do not have to be persuaded in a mediation, just help the parties reach agreement.
Exclusive post. Thanks for sharing.
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