Reframing mediation’s values in citizen-state disputes

Anni Albers

South of the Border, 1958. Anni Albers. (photo by Margaret Doyle)

I mediate in disputes between families and schools and local authorities involving support for special educational needs and disabilities (SEND). This falls within the arena of administrative justice – the interactions between individuals and communities and state institutions – and in this context of citizen grievance (‘citizen’ referring to anyone subject to decision-making by the state), mediation is not a cheap and fast alternative to litigation. To portray it as such diminishes the promise that mediation holds to humanise state bureaucracy and reposition the citizen-state relationship as one of mutual and shared rights and obligations. In this context, rather than a focus on settlement, mediation’s values should be underpinned by reciprocity and recognition, and linked closely with the ways that we embed social rights in our everyday interactions.

Far from celebrating the alternative mechanisms for giving force to social rights, such as mediation and the ombud, advocates of social rights have often lamented the lack of legal enforcement and argued for ways of making social rights justiciable in the courts. Even when the desirability of process pluralism is accepted (a ‘horses for courses’ approach promoted by the Administrative Justice and Tribunals Council (AJTC 2010)), priority has been given to the courts as the leading protagonist in any future partnership of relevant agencies. Mediation and other informal mechanisms have as a result found themselves relegated to the margins as a means of providing effective accountability for social rights violations.

This is one of the premises of our book, Reimagining Administrative Justice: Human rights in small places (Palgrave 2019), in which my co-author Nick O’Brien and I propose a realignment of administrative justice and human rights, and specifically social rights, as a means of fostering more sustainable and democratic responses to citizen grievance. I am a mediator; he is a tribunal judge. Together we see what increasingly resembles a busy assembly line of complaints and appeals that is costly in human and financial terms without evidence of sustainable improvement. We consider how mediators, ombuds and tribunals can work in a complementary, not competitive, way to support democratic accountability.

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New orthodoxies

In the book, we challenge the orthodoxies of administrative justice that prioritise the individual user, a well-oiled system, and closure by ‘resolution’.

The individual user has become sacrosanct in debates about the design of administrative justice. Reflecting the consumerist ambition that the point of reference is the individual ‘user’ of any service and that ‘user friendliness’ is the ultimate aim, proposals for redesign of administrative justice assume that any response to citizen grievance should be judged by how effectively it offers ‘user satisfaction’, whether in accessing a tribunal, mediator or ombud. Yet there are grounds for scepticism about this assumption, not because the user is unimportant but because the true identity of ‘the user’ is frequently contested, rarely simple, and never a matter of purely individual choice, divorced from all social and shared need.

Policy makers and academics often observe that, in contrast to the criminal justice, family justice or civil justice systems, the administrative justice system does not as yet exist, and moreover that this is a bad thing. This observation assumes the desirability of making administrative justice more ‘systematic’, in the sense of more clearly structured and bounded, with practice and process more uniformly prescribed and co-ordinated. This striving for systematisation, for consistency and certainty, looks dubious as an overarching strategy, not least because it fails to take account of the unavoidability of uncertainty and the need to remain ‘agile’ in the face of an unpredictable future. Too much ‘system’ can lead to precisely the uniformity, bureaucracy and inflexibility that administrative justice has always aspired to counter. We suggest recasting administrative justice as less of a system and more of a woven fabric, to look for what Bauhaus weaver Anni Albers described in 1958 as the ‘interdependent threads’ that, when connected, ‘form a cohesive and flexible whole’ (Albers 1965).

And finally, the emphasis on individual redress has reinforced the expectation that any serious attempt to respond to citizen grievance must aim for finality and ‘closure’. Even if the outcome is one of disappointment for the individual complainant, at least the administrative justice process will have brought things to an end, achieved closure and allowed for business to resume. To design for closure, however, is to design for resignation, for the acceptance of limit and definition, for boundary and exclusivity. The ability of administrative justice to engage in iterative practices, deliver provisional outcomes, and enable future creative participation, albeit under the shadow of inevitable uncertainty, is seriously constrained by such an ambition.

Design theory and the ‘problem in relationships’

In proposing the alternative orthodoxies of community rather than individual user, of a network rather than system, and of openness rather than closure, we explored design culture as a source of new ideas. Design theory has begun to feature in discussions about the future of administrative justice, and the prospects of a ‘digital by default’ future require us to reflect on what design might mean for administrative justice and for the fabric of the justice system more generally. The trajectory of design culture in the past 75 years and its own entanglements with democratic values, individualism and the marketplace illustrate how design has been subjected to similar pressures as those exerted on administrative justice and human rights. Innovative and progressive solutions have emerged in design culture, and part of the purpose of this book is to explore the resonance between ideas in design culture and the reconnection of human rights with administrative justice as proponents of a reinvigorated democracy. It is in the design of the public realm, in urban planning and housing development that the values that can shape a reinvigorated democracy become most clearly visible and in which the possibilities for administrative justice and human rights emerge most clearly.

Lack of trust is often cited as being at the core of the problematic citizen-state relationship. That lack of trust works both ways – not only in how the citizen views the state but how state institutions view the citizen. As political theorist Danielle Allen has noted, ‘citizenship is not, fundamentally, a matter of institutional duties but of how one learns to negotiate loss and reciprocity. … unrestrained self-interest does not make the world go round but corrodes the bases of trust’ (Allen 2004:165).

Where does mediation fit into this? We argue that mediation plays an unheralded role in this reshaping of the citizen-state relationship. That relationship is often characterised as one bounded by the constraints of standardised, faceless bureaucracy – but that bureaucracy is the frontier where the citizen meets the state and feels its texture. The problem in bureaucracy is, in turn, a problem in relationships. Human rights and administrative justice are, in their different ways and common origins, both means of humanising those relationships and investing them with democratic credibility.

Our book explores mediation techniques and their potential place as part of a networked and loosely woven administrative justice fabric. The use of the senses is important – looking, listening, even touching, where that suggests a lingering feeling of empathy, of common humanity inherent in an ethic of care approach that recognises the interdependence of citizen-state relationships. Mediation and other so-called extrajudicial institutions of administrative justice are not about policing bad behaviour but about promoting good behaviour on behalf of the community, including good administration. They are therefore well suited to restoring the humanity in bureaucracy, to ensuring that the way we touch the state, and it touches us, is constructive, not destructive.

Mediation as ‘appropriate alternative’ or ‘collaborative complement’?

Two areas in particular illustrate the need for a model that embraces democratic participation and the relaxing of confidentiality rules: planning and development, and special educational needs and disabilities. In both contexts, at least one of the parties is a public authority with requirements to report (to auditors, for example) or to answer to democratically elected representatives (local authority councillors, for example), and both involve consideration of wider community interests (CEDR 2003). Therefore, it may be both undesirable and unfeasible to impose confidentiality on mediation of public sector cases, including but not only multi-party public policy disputes. Critiques of claims for mediation’s advantages of speed, low-cost, and informality are justifiable (Pearce and Stubbs 2000; Bondy, Doyle, Reid 2005), but in a public-interest context it is the promised multi-interest engagement that is more interesting to explore – its added value more than its alleged proportionality.

In the book we examine special educational needs and disabilities (SEND) in England as a case study to highlight mediation’s potential to contribute to the democratic accountability work of administrative justice. In 2018, 3,200 SEND mediations were conducted. This is a complex and multi-faceted landscape, with a range of complaint mechanisms for different types of disputes operated by different public bodies and private actors (schools, local authorities, Secretary of State, the NHS, Ofsted, the SEND Tribunal, SEND-accredited mediators, the Local Government and Social Care Ombudsman, judicial review). It is an area rich with the polycentricity of disputes, with their overlapping web of perspectives, and alive to the tension between individual and collective rights.

In the SEND context the impetus for mediation is usually a challenge to a specific local authority decision that can be appealed to the Tribunal, but in reality the mediation encompasses a multiplicity of issues that go beyond the grounds for appeal, reflecting the ongoing relationship between families and schools and local government. It is not only the interests and needs of the parties attending that have to be taken into account. Collective interests are inherent in the duties that local authority SEND teams have for accounting for use of public funds, in schools’ needs to be supported, and in the needs of all pupils in the community to have access to inclusive education. Mediation as a means of democratic co-design offers the promise of addressing both individual and collective needs; it is essentially about connection, and it embraces conflict as a positive force for change. In that way, it allows for many voices and lends itself to the polycentric nature of SEND disputes.

The ‘sensibility’ of mediation

The ability of mediation to accommodate many voices and issues gives it a distinct texture or ‘sensibility’ that can complement more determinative grievance mechanisms. Mediation works in tandem with tribunals, as in the SEND context, and with the ombud; disputes can be mediated before or even after an ombud investigation, for example (LGSCO 2017:7; OIA 2013). It can also function as a complement to judicial review and the Court of Protection, often in complex cases in which disability rights are at the core (Bondy and Doyle 2011; May 2017).

More often, however, mediation has been presented as an alternative, not a complement, to more formal legal processes and even as an answer to the perceived problems besetting the courts, ‘gridlocked with competing sides or overworked with too-big-to-handle dockets’ (Menkel-Meadow 2002:53-54). Government policy, from Lord Woolf’s Access to Justice report in 1996 through to ‘proportionate dispute resolution’ as advocated in the 2004 White Paper, the 2007 Act, and the 2016 Transforming Our Justice System paper, has set out to promote mediation and other informal mechanisms of resolution as an answer to the perceived ‘problem’ of overcrowding in, and lack of access to, the formal justice system. What is needed, however, is a shift away from an emphasis on proportionate and fast toward an integrated network of complementary approaches that can accommodate the looseness that enables mediation to be more than about resolution or settlement. As we write in Reimagining Administrative Justice, this shift does not prioritise cost and speed; instead it prioritises principles of openness and community interest that are compatible with fostering democratic engagement and accountability, mutualism and difference.

These principles resonate with what has been called the transformative dimension of mediation, linked to ‘an emerging new vision of self and society, one based on relational connection and understanding rather than on individual autonomy alone’ (Bush and Folger 2005:23-24). This reflects a shift from an individualistic vision to a relational and interactive one, bringing individual freedoms together with social conscience. Settlement-oriented behaviour by mediators (often encouraged not only by policy imperatives but by codes of conduct and practice standards) is linked to a wider issue of ‘conflict control’ and to the fundamentally pessimistic ideology identified by Bush and Folger that holds that because human beings are ‘incapable of engaging with one another without destructive consequences’, social interaction is a destructive force (Bush and Folger 2005:247).

If this seems over-dramatic, consider the language used in some descriptions of the mediator’s role – to ‘control’ the process, ‘manage’ emotions, helping people to move away from ‘unreasonable’ positions – and some techniques, including keeping parties apart in caucus sessions, coercion and even bullying by mediators (Genn et al 2007; Enterkin and Sefton 2006). Mediation is not about neutrality, contrary to popular belief, nor is it about managing or controlling conflict. Concerns about the dangers of interaction are rooted in the view that individuals are driven by desire of fulfilment and that interaction must be limited and controlled so it meets that need but does not spill over into conflict, which is something to be managed in what is called ‘conflict control’. A ‘conflict-control’ model relies on a deficit view of human capacity linked to an ‘ideology of individualism’ and a notion that social interaction should be ‘tolerated but watched carefully’ (Bush and Folger 2005:245).

New priorities

I’m not against settlement or resolution. In many contexts it is what parties want and is an acceptable ambition. In the spaces of citizen grievance and public administration, however, rather than measuring the success of mediation by the number of settlements achieved, we should be aiming for mediation to be measured in terms of sustainability – whether it offers an alternative to the assembly line of complaints and appeals that the administrative justice ‘system’ increasingly resembles. Sustainable outcomes are possible when the interaction between people in conflict is open, iterative and deliberative, not funneled toward settlement.

Mediator and academic Carrie Menkel-Meadow suggests that mediators are reshaping the processes they use to move away from a focus on resolution and ‘right answers’ to focus on the ‘sensibility’ of mediation, one that adopts a feminist emphasis on needs and that prioritises empathy and listening rather than closure. She writes of what she considers to be ‘mediation values’ – reconciliation, listening, storytelling, empathy, understanding, accountability and apology, if not forgiveness – being used in both large and small arenas, including in human rights claims and in controversial community-wide issues. One such arena is SEND, which entails social rights and state decision-making and must accommodate often competing collective and individual needs, and in which such a reshaping is necessary.

Mediation in this sense is therefore more than mere dispute resolution or the creation of a safe space for negotiated justice. It becomes instead a technique for allowing citizens’ voices to be heard, for constructing bridge-building dialogue and for the restoration of relationships that are public and institutional rather than private and personal.

References:

Administrative Justice and Tribunals Council (AJTC) (2010). Principles of Administrative Justice. London: AJTC.

Albers, A (1965). On Weaving. Middletown, CT: Wesleyan University Press.

Allen, D (2004). Talking to Strangers: Anxieties of Citizenship since Brown v. Board of Education. Chicago: University of Chicago Press.

Bondy, V and Doyle, M (2011). Mediation in Judicial Review: A practical handbook for lawyers. London: Public Law Project.

Bondy, V, Doyle, M and Reid, V (2005). Mediation and Judicial Review – Mind the Research Gap. Judicial Review 10(3), 220-226.

Bush, RAB and Folger, JP (2005). The Promise of Mediation: The Transformative Approach to Conflict. San Francisco: Jossey-Bass.

Centre for Effective Dispute Resolution (CEDR) (2003). ADR for public authorities: A guide for managers. London: CEDR.

Enterkin, J and Sefton, M (2006). A report on the Exeter Small Claims Mediation Pilot. DCA Research Series 10/06. London: Department for Constitutional Affairs.

Genn, H et al (2007). Twisting arms: court referred and court linked mediation under judicial pressure. Research Series 1/07. London: Ministry of Justice.

Local Government and Social Care Ombudsman (LGSCO) (2017). Education, Health and Care Plans: Our first 100 investigations. London: LGSCO.

May, C (2015). Mediating Court of Protection cases – Summary of research. UK Administrative Justice Institute (UKAJI) blog.

Menkel-Meadow, C (2002). When Litigation Is Not the Only Way: Consensus Building and Mediation As Public Interest Lawyering. Washington University Journal of Law and Policy 10, 37-62.

National Audit Office (2018). Handling of the Windrush situation. HC 1622 Session 2017–2019. London: National Audit Office.

Office of the Independent Adjudicator (OIA) (2013). Mediation – a guide for students. Reading: OIA.

Pearce, B and Stubbs, M (2000). The role of mediation in the settlement of planning disputes at appeal: the debate and research agenda. Environment and Planning 32, 1335-1358.

 


Save the planet and mediate!

Save the planet, mediate: could this be a new argument for mandatory mediation?

At a recent meeting about the SEND tribunal, which hears challenges to local authority decisions about special educational needs, I learned that the average evidence bundle is 350 pages, and some bundles run into the thousands of pages. Aside from sympathy for the parties who have to prepare these bundles, and for the tribunal members who have to read them, this fact should generate concern for the environmental impact of so much paper.

In contrast, mediations of these tribunal appeals usually involve a 1-2 page Agree to Mediate statement from each party and, where applicable, the child’s statement of special educational needs (SEN) (soon to be the EHC Plan). Parties might bring along their files and other papers, but they are rarely used during the mediation.

Arguing that its environmentally friendly approach is a good reason to make mediation compulsory is frankly absurd. But is it any more absurd than arguing that mediation should be compulsory because it is cheaper and faster than the tribunal?

From September 2014, we will see the introduction of the first mandatory mediation in the UK. That it has so far remained under the radar is due in part to the specialist area of SEN being an unfamiliar area of mediation practice. It falls between the cracks of non-family civil mediation, despite being the longest running area of mediation in the public law and administrative justice arena. Because the claims are not money-based, it isn’t reflected in the Ministry of Justice’s Civil Mediation Database. Because it isn’t commercial mediation, but nor is it family or community mediation, SEN mediators cannot join the Civil Mediation Council as individual mediator members.

In the UK we have resisted attempts to make mediation mandatory. We’ve had experiments with compulsion in the past, such as with the Automatic Referral to Mediation pilot in the London Central County Court in 2004-05 that was evaluated by Professor Hazel Genn. One of Genn’s findings was that efforts to introduce compulsion led to lower settlement rates, from 69% to 38% during the course of the pilot, and subsequently led to higher costs for parties. The pilot was not rolled out.

Other ways of compelling parties are more surreptitious. They include introducing or raising fees to lodge legal claims (as with employment tribunals), requiring parties to attend a mediation ‘information and assessment meeting’ (as in family cases), and withdrawing legal aid that allows parties to get advice (as in all but very few excluded types of cases). We’ve seen that the government’s attempts to promote the use of mediation in family disputes has spectacularly backfired, with the number of mediations plummeting since the withdrawal of legal aid means that people can no longer access the lawyers who can give them confidence in trying mediation.

With the new requirement in SEN cases, we see a different way of dipping our toes into the mandatory waters. Water is an apt metaphor, given the arguments made by some mediators and members of the judiciary that although you can’t make a horse drink by leading it to water, most horses do actually drink, once they find the water as pleasurable as it is marketed to be. In other words, once people get to the mediation table (even if that’s by force) they will find the process helpful.

The new measures to come in this September are part of the reform of special educational needs provision in the Children and Families Act 2014. If parents want to lodge a challenge to a local authority decision on SEN, they will be required to consider mediation – like the MIAM requirement in family mediation, this means obtaining information about mediation and a certificate from a mediation adviser. Without that certificate, a parent can’t lodge the appeal. If parents decide they want to mediate, the local authority is required to mediate. The twist is that compulsion is for the local authority only.

This is the first instance of mandatory mediation (not just mandatory mediation information) in this country, and it’s being introduced with very little outcry.

Don’t get me wrong – I’m a big fan of mediation for SEN and disability disputes. Mediation works well in these cases, as years of experience and hundreds of cases has shown. My colleagues and I at the London SEN Mediation Service, run by the national charity Kids, have since 2003 seen the way mediation can help parents, schools and local authorities reach holistic and long-lasting agreements that put the child or young person at the heart of the resolution. But we were also among the majority of mediator respondents to the Department for Education’s consultation last year who argued vehemently against mandatory mediation for these cases.

Mediation is a wonderful resource and should be available to all, but it isn’t the answer in all cases. It takes time and effort, and to get a sound result you need the right people, senior people, to attend. For a number of reasons parties might legitimately decide not to mediate, and it serves no one to have parties attend reluctantly or to send a representative to mediation who doesn’t have the authority to settle. Furthermore, the risks introduced by the new requirement and the associated timescales will make mediation less, not more, attractive.

We might find that money is spent on mandatory mediation information provision (paid for by already over-stretched local authorities) and the issuing of certificates, and that numbers of actual mediations go down while tribunal numbers remain the same. The winners in this game are likely to be only the certificate-issuing mediation advisers. The losers are the parents and local authorities who will be forced to jump new hoops, and the children and young people whose provision might be further delayed.