Previous Articles & News

News Archive

Items which have previously appeared in our News section:

ANM – Widest Mediation Survey in the UK - Spring 2007

All members either put in or should put into an online survey information about mediations they have done. Since 2004 ANM has continued to monitor mediations and we now have statistics from almost 600 mediations carried out by members over the last 2 years or so. These show:

• Most mediators are appointed directly rather than through mediation providers
• Court Scheme appointments managed through the National Mediation Helpline are growing slowly
• The largest subject areas for mediations are either general contract disputes or construction disputes
• One of the smallest subject areas are personal injury and clinical negligence disputes
• Almost half the disputes handled by members are valued at over £100,000
• Less than 10% of disputes are valued at less than £10,000
• Over 75% of mediations settle
• Even when they don’t settle the parties do make progress in narrowing the issues or managing the dispute more effectively

This information and more is available by logging onto the Survey Monkey website.

Law Society launches Dispute Resolution Service

Now users can access the Law Society’s full range of ADR advice and expertise by logging onto www.lawsociety.org.uk and finding the link to the service. This should be effective as from the end of May 2007.

CIArb re-launches its DR Service

For a long time the Chartered Institute of Arbitrators was associated much more with Arbitration than with anything else. Since 1995 it has provided a panel of mediators and since 1998 a panel of adjudicators. The new service comes under the arm of a wholly owned subsidiary called IDRS providing advice on and appointments of a full range of DR professionals. Find out more by logging onto www.idrs.ltd.co.uk.

Summer School 2006

The Association of Northern Mediators ran the 7th Summer School with David Richbell and Joanna Kalowski at the beginning of June. Members of the Association of Northern Mediators and the Association of Midland Mediators met up in the Yorkshire Dales for a thought provoking 2 days. This seventh summer school took us through a wide ranging discussion on using mediator skills to overcome difficulties thrown up by parties attending mediations. It was universally declared to be the best summer school yet.

ANM as a Mediation Provider approved by the DCA

2006 saw the Association approved by the Department of Constitutional Affairs as an organisation that met the high standards expected of its members. We satisfied the DCA that all panel mediators were properly accredited and trained, that they maintained adequate professional insurance, achieved good reports from the mediations carried out through the Association and continued to hone their skills by attending further courses during the year. Users of the Associations services should be confident that we will do what the label says we will do in providing a first class mediation service. Given our limited administration this is a considerable achievement and says a lot for the commitment of all our members in improving access to quality mediators and to improve access to justice as a whole.

Mediators unregulated by EU

Mediators are already regulated by both the organisations which trained them, by this Association and by the Law Society or whichever professional body they belong to. We were pleased that the EU Parliament rejected proposals by the Commission to define the required standards for mediators. It goes without saying that whatever the EU had in mind would be less onerous than the standards applied here. There was absolutely non point is adding another regulatory layer.

Government announces national court mediation scheme

With effect from sometime in early summer the existing court schemes running in Chester and north Wales, Liverpool, Manchester, Newcastle, Teeside and all Yorkshire Courts will be subsumed into a national scheme run centally through something called the National Mediation Helpline. All mediation enquiries will be channelled through a single point by using the helpline number 0845 6030809. Currently there are 5 providers listed whose mediators are then picked from their rotas. This Association will be registered as a provider with the Civil Mediation Council for all the courts within the region once the new scheme comes into effect.

What will this provide? The changes are aimed at providing an efficient administration at minimal cost. Users will be offered a scale of charges probably based on the current scales of £250, £500, or £750 per party for a time limited mediation. These scales offer considerable cost savings for users, and mediators are sourced within 2 working days. This Association will play a very active part in running the court scheme within the courts running from Chester and North Wales through to the East coast of Yorkshire.

When will Courts penalise refusal to mediate? - Court of Appeal guidance

The Court of Appeal has given important general guidance in the use of ADR and mediation in personal injury litigation and in particular has ruled on the circumstances where it is appropriate to penalise a party who refuses mediation. The Court's judgement (in the consolidated appeals of Halsey -v- Milton Keynes General NHS Trust and Steel -v- Joy and Halliday) was reached after giving consideration to the representations of four ADR providers and interested bodies and can therefore be taken as its definitive view on how ADR should and should not be encouraged in this field.

The court declined to penalise the refusing parties in both cases, deciding that refusal was not unreasonable in the circumstances. At first blush, the judgement appears to be a major setback to supporters of mediation. On careful analysis however, the jury is out as to whether the guidance given by the Court of Appeal will in fact encourage the greater use of mediation, in particular in personal injury cases where the take up of mediation has been notoriously slow. An article by Paul Hughes of Crutes solicitors.

Read the full article by clicking on this link
Read the judgement in full by clicking on this link. (PDF document)

2005 Mediation Survey published - over 1000 mediations

The 2005 Mediation Survey has now been published. Our survey this year asked the members of the Association how many mediations they had conducted during 2005, and how they were appointed. It included additional questions about the types of mediation and their values. This year the survey analyses results over 5 years of monitoring mediations. If you would like to periodically look at the results they are available on the Survey Monkey system

The results show a number of trends:

• Direct appointments havew overtaken appointments from primary providers by a margin of almost 3:1.
• Court Schemes have a limited success although their numbers outstrip appointments by national providers if the unrecorded small claims mediations are added to the 29 recorded.
• The success rate has increased above 75% indicating a margin of success not too different from for instance CEDR’s statistics.
• Of those that did not succeed there were significant gains recorded despite the lack of success to iunclude narrowing o issues and better communications.
• Sectors such as general commercial and construction disputes produced the largest numbers of mediations. Personal injury and health care disputes produced either a reduced or otherwise a poor showing.

We would welcome comments and suggestions from those reading the statistics as we aim to show mediation and its effects in as transparent and accurate way as possible.

Stop press – national mediation awareness week 2005/6

The government said that it is going to repeat its mediation awareness week in 2006 following last October’s successful week when mediators, judges, court staff, and the Law Society and the Bar all ran different events highlhting the uses of mediation. This year there will be events taking place in the first week in October 2006.

Stop press – government announces savings of £24 million

Last year the government worked ut that it had saved something of the order of £14 million following using mediation to cut down the time and the costs of resolving disputes. This years savings are even greater. The Department of Constiutional Affairs in London has reaffirmed its determination to see litigation used as a last resort.

Stop press – insurers announce new protocol for personal injury aimed at reducing the costs of resolving disputes

The Association of British Insurers announced in November 2006 that it was establishing a new protocol for insurers to cut down the use of litigation to solve insurance claims. The ABI claimed that for every £1 spent on compensation a further 93p in costs was being paid out to claims handlers for claims of less than £15,000. Even for claims in the scale above this the average was over 40p per £1. The protocol will involve complainant’s completing standard claim forms and insurers than having 3 months to investigate and reply. Insurers would offer a free legal advice service. There is then an opportunity to mediate and only if that fails will the complainant then go to court. For further information look at the ABI website and search for the report titled ‘Care and Compensation’.

South Wales Court Mediation Scheme

The South Wales Court Mediation Scheme was launched in January 2004. Click on the link to download the documentation from the Court Service Website.

Court Schemes Report

A report on the court schemes by the Association's Chairman is now available.

Latest Briefings - the ADRG and CEDR Conferences

Government announces the formation of up to 40 new court based mediation schemes. This was announced both at the ADR Group debate in October and the CEDR Congress in London on the 20th November 2003. The Minister David Lammy who spoke at both Conferences emphasised the importance of bringing to the fore non financial remedies in successfully resolving disputes such as the Alderhey Hospital body parts settlement. The Government are at long last wedded to the concept of mediation being at the forefront of dispute resolution by reducing in absolute terms the numbers of disputes resolved through the courts. Hence the priority of expanding court based schemes. There are three basic areas where the government want to push mediation:

• Awareness raising through publicity
• Court based advice service
• Running at least one mandatory scheme

It's the last one that causes most concern, although it will be interesting to see how mandating mediation will affect the results. Doubtless the governments commitment will be tested by how much backing it gives to providing an on site advisory service either using local mediators or by training specific members of the court staff. The DeCAff representative, Heather Bradbury, confirmed that £1.5 million would be made available to expand mediation centered primarily on Court related schemes.

Lightman LJ gave his views at the CEDR Conference by suggesting that judges should really impress on the parties the high risk of continuing with litigation. At in his Hirst v Leeming decision the burden of refusing to mediate is a heavy one and can lead to cost penalties. Similarly in Leicester v Coates a party withdrew from the mediation and a party who lost having failed to agree to mediate in Vivani v Vivani ended up paying indemnity costs. He outlines the general principles to be adopted:

• A party refusing to mediate must say why in writing
• Judges must understand that litigation ought to be a last resort
• Judges should know if a party has 'failed to engage in the mediation process
• It's this last one that causes considerable interest as it might very much impinge on the mediator's confidentiality agreement. Coleman LJ very much agreed and spoke specifically on the enforcement of mediation clauses.

Court Schemes were very much in vogue, with the CEDR Conference coinciding with a JSB conference of judges on such schemes. DJ David Cooke from Birmingham spoke about the success of their scheme for disputes over the small claims limit. Full details of this and other schemes are reported elsewhere in the News section. We can expect further developments in areas such as Housing Disrepair and Employment schemes, and our specialist groups of mediators in these areas are working on accessing schemes in the next 6 months.

User Groups were well represented at the conference. The NHSLA were confidently pro-mediation whereas the Treasury solicitors appeared fairly lukewarm. The representatives of the Society of LA Chief Executives and AVMA were really very positive in their desire to accelerate access to mediation. The solicitor handling the Alderhey mediation was particularly poignant in his support for the way mediation produced a solution that suited over 99% of the claimants showing the importance once again of the non-financial benefits.

Marketing Mediation and Regulation were areas that drew particularly heated debate. The Chair of ANM spoke on self help through working together within loose groupings of mediators. Most of the rest of the panel spoke from particular vested interests either from the major providers, the professions or the private providers standpoints. At least we were all agreed on the ethos of minimal regulation.

ADR Debate

It is expected that very shortly the court of Appeal will be making a key pronouncement on mediation in a case called 'Halsey v Milton Keynes General Hospital Trust'. It will cover the key areas of what powers the court has to stay litigation in favour of trying mediation and on the costs consequences refusing to mediate. If you want to see the debate, the submissions of the Law Society and the ADR Group are posted in the members section. The result of this important decision will be posted shortly as soon as we have heard from the Court of Appeal.

Insurance market sets up mediation scheme

In a drive to use mediation in insurance disputes Lloyds of London has launched a claims mediation centre. It has been set up by mediation provider InterMediation using a number of top City firms. The Chair of the Association of Midlands Mediators, Andrew Paton, calls the move to starting an insurance mediation centre in London as a major benefit to the insurance market.

Costs Sanctions Urged

Lord Phillips, the Master of the Rolls, urged Judges to punish Solicitors with costs orders if they do not comply with Alternative Dispute Resolution Orders. Speaking at the Inner Temple on the 20th April 2002 Lord Phillips said ADR was effective in keeping prices lower and the parties on trading terms. He praised the Commercial Courts' case management of ADR and said that District Judges need better training and resources to deal with it. This very much follows the ruling in Dunnett v Railtrack reported elsewhere, which saw a winning Claimant penalised on costs for failing to obey and ADR Order. Whilst his comments weren't restricted to ADR Orders, he saw the lack of use of costs sanctions by Judges as a reason to highlight this under use of Judicial powers. He reflected on the very positive mediation experience in the Commercial Courts where there was a significant increase in the numbers of ADR Orders. In the 88 cases monitored in the year up to July 2000, only 27 had failed subsequently to use ADR procedures following the issue of an ADR Order (LCD Research No. 1/02). Lord Phillips was clearly impressed that the majority of cases settled after the imposition of an ADR Order in the Commercial Court, and could see significant benefits in the wider use of ADR Order in all Civil Courts. (25.4.02)

European Green Paper on ADR

This was published by the EC Commission on the 19th April 2002. The purpose of the Green Paper is to initiate a broad based consultation of all those involved in alternative dispute resolution in civil and commercial law. It highlights the growing interest on ADR in the European Union in three particular areas:-

1. As a means of improving access to justice.
2. As a response to Member States' governments who produced legislation encouraging ADR.
3. It has been given political priority in the field of information technology disputes and web-based cross border disputes.

The initial report recognises the importance of the development of ADR throughout the EC and this paper is intended to make civil and commercial mediation a pivotal process in the way cross-border disputes are settled.

Take for example ADR in the context of EEC Court proceedings. It says that the Member States' Codes of Civil Procedure allow for Judges to make conciliation (as distinct from mediation) as a compulsory phase in the procedure, or "explicitly to encourage Judges to intervene actively in the search for an agreement between the parties". It quotes CPR Rules 26.4 and 44.5 that give UK Courts power to suspend proceedings and reduce costs recoveries, and gives similar examples elsewhere in Europe. It highlights that ADR is not the subject of regulations in the Member States retaining its voluntary status. It looks at the rather mixed history of conciliation in labour disputes and mediation in family law, and sets the task of seeing how Mediators in the EC should be regulated ie. whether such regulation should be done locally in the Member States or globally as a European Directive.

You really have to read through the Euro-speak to get a good flavour of this report. Take for example "any measure that might thus be implemented in line with this Green Paper and on the basis of the consultation should also respect the principles of subsidiarity and proportionality as set out in article 4" or "the appropriate instrument - regulation, directive or recommendation - should be selected according to the nature of the measures envisaged". Why they cannot use clear language remains a mystery. We expect the Green Paper to generate more wise words about comparative research into ADR between the different countries, and that might just result in some sort of Code of Conduct for certain types of ADR, particularly those that involve a cross-border element, to include E-commerce, trade and consumer disputes.

Comments on the Green Paper or requests for copies to: JAI-coop-jud-civil@cec.eu.int

Case Law Updates

UK Courts will not permit certain cases to go ahead without prior recourse to mediation. For details of the Court of Appeal decision in Frank Cowl v Plymouth City Council 2001 and the Master of the Rolls strong support of using ADR in appropriate cases in Dunnet v Railtrack 2001 see below.

Cowl v Plymouth City Council
Dunnett v Railtrack plc

Pilot Scheme Report Published - September 2001

The Leeds Metropolitan University report on the Leeds Mediation Scheme for the Lord Chancellor has now been published. Click here for a copy.

Mediation news

The Government says yes to mediation - 23/03/01 - Lord Chancellors website

Employment agencies encouraged to mediate - DTI Directive 22/06/01 - DTI Website

Press Announcement - 31 July 2002

The Lord Chancellor's Department has today issued a report to show how Departments have taken forward the Government's commitment to use alternative methods of dispute resolution (ADR) to settle its own disputes.

The information submitted to the Lord Chancellor's Department shows that in 48 disputes in various Departments a method of dispute resolution has been used or attempted since the Lord Chancellor announced the ADR Pledge in 2001.

The Lord Chancellor, Lord Irvine, said today: "Despite this apparently slow beginning I am encouraged by the genuine desire which Government Departments have shown to build on this commitment. From the evidence submitted to us I am confident that use of ADR will continue to increase in the next few years.

"The ADR Pledge is clearly being taken very seriously. It is also clear that there is growing enthusiasm for ADR within Government Departments. Many of them have embarked on significant progressive steps to implement training programmes and are undertaking awareness training in ADR, sometimes even with Government Lawyers training as mediators themselves to ensure that ADR is a fundamental part of their dispute handling process.

Over time, I hope that these annual returns will demonstrate the continuing increase in the level of ADR use."

Editors note

1. This report can be found on the LCD Website www.lcd.gov.uk The Pledge
2. Under the terms of the ADR Pledge, all Government Departments and Agencies have made the following commitments:
   • Alternative Dispute Resolution will be considered and used in all suitable cases wherever the other party accepts it.
   • In future, Departments will provide appropriate clauses in their standard procurement contracts on the use of ADR techniques to settle their disputes. The precise method of settlement would be tailored to the details of individual cases.
   • Central Government will produce procurement guidance on the different options available for ADR in Government disputes and how they might be best deployed in different circumstances. This will spread best practice and ensure consistency across Government.
   • Departments will improve flexibility in reaching agreement on financial compensation, including using an independent assessment of a possible settlement figure.
   • Government Departments will put in place performance measures to monitor the effectiveness of this undertaking.

We are delighted that the Lord Chancellor is once again demonstrating the governments commitment to mediation. But wisdom is one thing in demonstrating how appropriate mediation and ADR generally can be in settling disputes, and integrity is another in actually putting into practice this pledge to use litigation as a last resort.

Clinical Negligence Developments

The Government's report last year highlighted the unacceptably high cost and sizeable increase in thge volumes of clinical negligence disputes even in the light of its own CPR protocal. The ANM special interest group or SIG on personal injuries and clinical negligence has held high level talks with representatives of the NHS Legal Services, the Medical Defence Union and the Federation of Insurance Lawyers (FOIL) on the one hand and the claimants representatives with the Action for Victims of Medical Accidents (AVMA) on the other. The talks were not aimed at creating a scheme in the near future but in assessing what the different parties wanted out of the Government's push towards using ADR more to resolve its disputes. There was a belief from the funders that the reluctance to mediate came more from the Claimant representatives rather than the Defendants. That is by no means the universal experience, but is a significant perception. The total volume of mediation at 23 so far were pretty dismal even by the standards of other sectors. There may be a reluctance to use mediation on the basis that AVMA considers that mediation isn't really appropriate for most clinical negligence disputes. But they do take a positive attitude towards a wider interpretation of ADR. Arnold Simanowitz, AVMA's longstanding Chief Executive, says that opportunities now exist to use mediation as a springboard towards developing new evaluative structures, and he sees an expanding roll for neutral assessors or gatekeepers*. They, he says, would be brought in at an early stage to sort out what course is appropriate. He is able to bring in another expert neutral if the case is complicated enough; having heard the parties, he then gives a preliminary view. There will be in evitable difficulties in agreeing on the identity of the assessor because of the split in the profession between Claimant and Defendant types. There is also the perception that mediation is in a glass bottle labeled 'Faciliatives Only' - this is too narrow approach, and ANM members consider that mediators have a wider roll to play than simply being there to encourage the parties to create their own solution. Most mediators have specialist evaluative experience which carefully combined with the mediators traditional roll could be an extremely useful combined skill to steer the parties towards either a settlement or a more refined process to achieve that settlement. Simanowitz's views about 'gatekeepers' may not be as wide off the mark as we might at first have thought in the light of the wider Government's interpretation of ADR.

*Source - Clinical Risk 2002-8

EU Green Paper on ADR

The Association believes that all UK based ADR bodies have a vital roll to play in bringing mediation onto the European agenda. The EU Green Paper published this summer is aimed at increasing the use of mediation in resolving cross border disputes. We see it as a much wider opportunity for the EU to recommend the use of mediation in all its contracts and negotiations in the same way as the UK government has done so in its OGC Guide to Dispute Resolution. They asked various bodies including this Association to comment by the end of October, and you can see our response by clicking here.

A fuller analysis of the EU position on ADR can be found in our archive section.

Government Dispute Guidance

The introduction of new ways to resolve contractual disputes between government departments and suppliers has been launched by the Governments procurement think tank the Office of Government Commerce. The guidance is published with the specific backing of the Lord Chancellor's office and is but one of a series of initiatives to promote alternative ways to resolve disputes that followed the governments pledge of March 2001 to involve ADR in all disputes wherever the other party accepts it. The guidance seeks to put into effect sound dispute avoidance and dispute management principles. Its interesting to note that the section on mediation also covers concilliation, which takes a mediators roll into using evaluative techniques as necessary. Litigation and arbitration are both to be used as a last resort and the dispute resolution routemap includes the full panopoly of Neutral Evaluation and Adjudication as well as Mediation and Conciliation.

See also http://www.open.gov.uk/Home/HOHome