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.
Most women in their midlife years have heard of Spanx. For the rest of the population who don’t know, Spanx is the brand name of a range of undergarments that are specially designed to squeeze and shape you.
The problem is one of displacement of mass. Newton’s Third Law of physics, commonly known as ‘Every action has an equal and opposite reaction’, tells us that we can’t use Spanx without repercussions. I’m sure there’s another law named after another eminent scientist that says ‘In a contained body, mass moved from one location will appear in another’ – but I can’t put my finger on it just now.
So you can squeeze and tighten, but unsightly bulges will appear in other places. Viewed face on in a mirror, these bulges might be near invisible, but other angles are less forgiving, and the consequence is the opposite of the gorgeous sleekness that was intended.
I considered this as I read the latest of many reports about the recent steep decline in the number of people using mediation for separation and divorce since the implementation of the cuts that came in with the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The Government’s own figures were that 623,000 of the one million people who benefit from Legal Aid every year will be denied access to this aid.
We now have more evidence for the suspicion that a combination of a) cutting legal aid to pay lawyers for advice on these cases and b) requiring a party who wants to file for divorce to attend a compulsory mediation information session equals fewer people actually using mediation for these cases and more continuing to use the courts. Yet the policies implementing these changes were intended to have the opposite effect – to move cases out of the courts increase the number of cases resolved by mediation.
A Freedom of Information Act request by a firm named Lawyer Supported Mediation uncovered startling stats for the six months from April 2013 (the start of the restrictions on legal aid) to October 2013. In the 12 months before LASPO D-Day in April 2013, lawyers made more than 62,000 referrals to publicly funded family mediation. In the 6 months after D-Day, they found just 20 incidents of lawyers using public funding for family mediation. That’s out of more than 82,000 family claims made in England and Wales in that period. So the picture isn’t one of more happy families and fewer separations, it’s one of more claims lodged in court by people in the midst of one of the most stressful events of life.
Why has it had that effect? Distasteful as the truth may be to some (including some of my fellow mediators), lawyers play a crucial role in making family mediation successful. Not in every case, and (dare I say) not every lawyer, and not by sitting in the mediation meeting with their client. But the gatekeeping role played by legal advisers is crucial for parties who are asked to consider a little-known and unfamiliar process, one with (let’s admit) some reputational issues, to resolve disputes that have significant and lifelong implications for the parties. Family disputes are often laced with fear – fear of the ex-partner, fear of conflict, fear of the effect on children and wider family members, fear of losing one’s home, fear of agreeing to less than you deserve. For women in particular there is often the charged dynamic of wanting to avoid conflict and worrying about pressure to agree to less than you are entitled to.
Legal aid is available for what is called “Help with mediation claims”, but its availability is not well known. It is a one-off fee of £150 for advice on mediation – not a sum most of us would sneeze at, but when you consider that a) this only kicks in after the lawyer has had an in-depth discussion with the client in order to identify if mediation is an option and b) more such discussions will be needed before a settlement is tied up in lovely ribbons, it doesn’t work out to be a sustainable income stream.
Mediation as a lawyer-free zone just won’t work in family cases (and probably in many other contexts too). In order to make informed decisions – whether to attempt mediation, what to propose in mediation, what to agree to in a settlement – many parties need legal advice. Mediation is an untried and untested process for most people –no wonder they feel reluctant to stake their future, and possibly that of their children, on it without some trusted guidance.
We know that the judiciary is concerned at seeing more people using the courts for unnecessary claims, floundering to get to grips with the legal system on their own. Lord Neuberger, who has been outspoken about the damaging effects of the legal aid cuts, said in an interview last spring:
“…if you start cutting legal aid you start cutting people off from justice … affecting their rights. And that’s dangerous. You either have people who are very angry with government and lose trust in the government … or you get them taking the law into their own hands.”
Litigants in person aren’t themselves the problem; the problem is a system that isn’t easily navigable to ordinary citizens. The challenges created by an increase in these litigants are set out clearly in the report of the Judicial Working Group on Litigants in Person (July 2013). The report highlights the problems faced by unrepresented legal parties in understanding and complying with court procedures, understanding rules of evidence, presenting their case articulately, focusing in the issues and judging the merit of their case. Managing cases where one party is represented and the other is not poses particular challenges, not least allegations of bias if the judge leans too far in helping a struggling litigant.
The Working Group also noted that unrepresented parties are not more likely to embrace mediation:
“They can be guarded against the notion of settlement or mediation, believing that any discussion prior to coming to a substantive hearing might be perceived as a sign of weakness, or simply because they wish to ‘have their day in court’.”
At best, people might find a way to reach constructive agreements themselves; or they might drop claims without merit or even manage to pursue a claim successfully in court on their own. At worst (and more so as court fees rise and tribunal fees take effect), simmering and unresolved conflict will burst out in other ways – in mental health problems, in violence, in unemployment. A case in Essex last October that resulted in courtroom rage is but one example.
More claims brought by litigants in person are just some of the unsightly bulges starting to appear as the result of the LASPO Spanx squeeze. Keep an eye out for more.
As a North American transplant to this cynical and self-deprecating island, I usually find I’m the lone Pollyanna in the room. Seeing the sunny side is part of my national nature. It doesn’t help that I’ve been a mediator for 25 years and am trained to see opportunity in adversity and promise in conflict.
But I’m more Cassandra than Pollyanna when it comes to the European Union ADR Directive and the excitement those unexciting words seem to inspire among colleagues in the dispute resolution world.
The Directive is aimed at addressing the gaps in consumer redress within and across European Union countries. It requires member states to ensure that there is independent appropriate dispute resolution (ADR) available for consumers to use as an alternative to courts for resolving disputes with traders and businesses. ADR must be free or low cost, accessible, quick and transparent.
So far, what’s not to like?
The main problem is that member states can choose whether or not to make businesses sign up to ADR, and Britain is unlikely to go down that route – this government has an allergy to anything that looks like regulation or bureaucracy or constraints on market freedom. So the upshot is that reputable businesses, ones that want to provide good customer service and can afford to pay for independent redress, will engage with the new requirements. The rogues of the consumer world – and not just the rogues, but the tiny, the tired and the overstretched – are all likely to say ‘no thanks’ to a consumer asking for independent redress. So ADR will be available, but it won’t necessarily be used. It could all turn out to be an exercise in fancy window dressing.
But not being used isn’t the worst thing that could happen – consumers who can’t get their trader to use an ADR scheme can still use the courts – and the small claims procedure in many ways is becoming more accessible and user friendly. I know from previous research I’ve carried out with court users that the fear of court is often unfounded; people are surprised to find they could manage the process without a lawyer. The small claims procedure has most of the attributes set out as desirable in an ideal ADR scheme – independent; a low barrier (court fee) that acts as an effective filter for vexatious complaints; a mediation option available if both parties agree, and a binding legal determination if necessary. Speed for small claims is variable but can be weeks rather than months or years.
What worries me more is what kind of dispute resolution we might end up with. In order to make their product attractive to businesses (which are the target ‘customers’, because they’re the ones paying for it), ADR providers will be pressured to compete on price and provide cheap and cheerful dispute resolution. That might suit some disputes, but not others. The Directive doesn’t distinguish between ADR processes, so mediation is lumped with arbitration, ombudsmen with conciliation, all in a soupy mix. Is anyone considering what types of dispute resolution work best for which consumers, which complaints?
I suspect that the ombudsman model – and in particular its emphasis on seeking evidence and on feeding back to the profession or industry complained about in an attempt to improve the actual services and internal complaint handling – will be pushed out in favour of a complaints’R’us approach – an assembly line of escalated complaints, which can offer a cheaper cost basis for the businesses that are its customers. Businesses could even find it’s cheaper to send their complaints to the ADR scheme rather than handle them properly themselves.
Is that what we’re aiming for? I’m open to being wrong, and indeed hope I am. But for now Cassandra is winning over Pollyanna in the landscape gazing.
One in five of us has a disability.
This might not come as a surprise in light of the very successful Paralympic games, which put disability at centre stage. But will this visibility last? Two years ago, as planning for the Games was in full swing, the UK government issued a Legacy Promise for Disabled People, setting out its commitment to bringing a shift in the way society views disability and to doing away with the obstacles that prevent people with disabilities from being fully included in all parts of society.
One aspect of this Legacy Promise is a commitment to improve accessibility of public transport. Gaps between the high-level commitment and the reality on the ground is an issue covered elsewhere in the article “Mind the Gap: What we’ve learned from the Paralympics” written with my colleague David Hilton.
Another aim of this Legacy Promise is to promote to business the benefits of attracting customers with disabilities. As with the ‘Pink pound’ campaign, making a business case for better access to goods and services for disabled people is considered to be more effective than threats and sanctions for breaching equalities legislation. Research conducted in 2010 found that one of the main barriers for small businesses was not knowing how to boost sales by attracting disabled customers.
So I welcome a new booklet produced for small businesses called Growing Your Customer Base to Include Disabled People. Published by the Department for Business, Innovation and Skills, together with the Employer’s Fourm on Disability and the Office for Disability Issues (ODI), the booklet [http://odi.dwp.gov.uk/docs/idp/Growing-your-customer-base-to-include-disabled-people.pdf] provides clear and useful guidance on attracting and retaining customers by improving access to services.
It’s mostly parenthood and apple pie stuff – uncontroversial, unthreatening, even comforting in its common-sense approach. The problem is businesses need to know that even when it isn’t easy to improve access, it’s still the law. And that even with the best intentions, there will always disagreements over what is meant by reasonable adjustments and how far businesses need to go to ensure their services are accessible.
It’s unfortunate that at the same time we’re looking to see evidence of a legacy from the Games, we’ve seen a loss of the specialised service that helped businesses and disabled people resolve such disagreements. The Disability Conciliation Service was set up in 2002 by the Disability Rights Commission, and in the merging of the equalities commissions it transformed into the Equalities Mediation Service. Over the past ten years it has handled hundreds of discrimination cases and helped businesses and their customers to achieve long-lasting changes to the benefit of both. The government stripped the Equality and Human Rights Commission of its power to fund the service and refer cases to it. This sent a strong and unwelcome message – that it isn’t society’s responsibility to promote inclusion, and that disputes over accessibility are no different from disputes over building repairs or neighbour problems.
But these are different, and disputes over access aren’t a problem just for the one in five of us with a disability. We are all disadvantaged if we fail to live up to the promise of inclusion. It isn’t just good business, it’s our business.