"A handshake is easier to enforce than a judgment." The words of Robert Webb QC, former General Counsel at BA, at the first of two fascinating conferences I attended this week, both wrestling with promoting the use of mediation. In London, the Civil Mediation Council hosted its annual event, with the provocative title Mediation: Who Needs It? In Edinburgh, the Scottish Mediation Network and the Law Society of Scotland discussed Embedding ADR in the Civil Justice System.
They were very different, in form and content. In London, we sat mainly in theatre style rows listening to speakers who seemed very far away! The programme was varied and included telephone mediation, users needs, EU proposals, community and workplace mediation and the results of the biennial CEDR audit (mediation appears to save people a huge amount of money – £2billion they estimate- at relatively little cost). In Edinburgh, we sat at round tables, listened to a variety of speakers on policy matters and the benefits of mediation and discussed in our groups some of the practical issues around actually getting it embedded. The Scottish Government Minister, Roseanna Cunningham, in an impressive speech, said it was not a question of "whether," but "how". Encouraging!
Several points of interest emerged for me. Firstly, it is less and less easy to categorise disputes into classic subject headings. For example, a family business disagreement may raise family, partnership, company, commercial and/or workplace issues. One of mediation’s great strengths is to offer flexibility to map out the issues in a comprehensive way — and design a process to match. It is after all, as many speakers pointed out at each event, the clients’ dispute and their money, future and piece of mind which is at stake.
Secondly, in England and Wales business leaders are taking a lead with a Dispute Resolution Commitment: "In the event of a dispute where negotiation has failed and prior to beginning litigation, we are committed, wherever possible, to exploring with the other party the resolution of the dispute through collaborative working and the use of Alternative Dispute Resolution processes, such as mediation."
Thirdly, according to the CEDR audit, resolution rates for commercial mediation continue in the region of 90% but with around 70% resolving on the day and 20% shortly thereafter. This accords with Core’s recent experiences where a number of complex commercial matters have settled a few days after the mediation day with further input from the mediator. A sign of a maturing approach perhaps.
Further, Professor Bryan Clark reminded us that Robert Webb’s words about handshakes being easier to enforce are supported by the evidence: 90% of mediated agreements endure as against 67% of court judgments.
And, thankfully, we were told that most people no longer wish to mediate into the wee small hours….the days of mediating into the night appear to be receding!