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“Discussion about Compulsory ADR Webinar - Mediator's New Breakfast Club Recording - 21st July 2021”

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“Mediator's New Breakfast Club Recording - 21st July 2021”

Topic: Discussion about Compulsory ADR

Following the publication of the report by Lady Justice Asplin DBE. William Wood QC, Professor Andrew Higgins and Mr Justice Trower in July 2021 for the Civil Justice Council (CJC)


“These transcripts have been automatically created. We apologise for any errors and will correct names etc. if we are alerted to them”

My name is Michael Koba and Davao in who you also see on your screen where the kind of joint moderators have this and have been some time since we last, sadly the other David David richville. A couple of bits of housekeeping first, this is being recorded, and the recording will be made available. Later. We've got, I think, three poll questions which we will feed in at various different stages, which are hopefully relevant to the topic. We'll talk about our next meeting at the end, and also the possibility of a lunch when we're all allowed to do that, probably around Christmas. So, apologies that original speakers had to drop out for very important personal reasons, but we thought it'd be useful and topical to have a conversation about the civil justice council report on compulsory ADR. And also the comments of Jeffrey was there on so in accordance with RF, our usual practice? Dave, would you like to invite some people who are attending for the first time to very briefly introduce themselves? We're going to about 10 of those. So if, if those of you who are attending for the first time, whereas David's, David's got a list, and then Martin can find you and unmute you or you can unmute yourself. So, over to you, Dave.


Thanks. Thanks, Michael. Hello, everybody. morning, afternoon, whatever time it is with you. I've got a little list. So, if you're already on Could I please invite Sara briley I think that's correct. pronunciation. Hello. Would you like to say hello, and what your interest is in mediation, if any?


Hi, I'm Sarah. bribie. I work for family mediation kamri biggest day and I've been working as a family mediator since 2008, I think. Yeah, so that's me.


Okay. Thanks for much. Les Brown. If you're there please. ivalice Academy comm came back to you will will charmers Are you there. Well. Hi, Dave.


Yeah, thank you. I shall first want to attend. So I got my colleague Lisa. Me.


Yeah. Do you want to say hello? You can both both have a choice? I say hello. Good morning, everyone. Good morning, everyone. And you want to say


Oh, sorry. Yes. I just saw you muting me. Nobody mouflon quarterback? Um, yeah, so so we datanet lots of meetings around the country. We also have activities and things. So it's good to sort of always meet new faces and see people and get together and this is a great opportunity to say hello, so hello, me. And hello.


Lisa, Do you want anything? No, this is my first time so excited to be on board. Starting with that well, officially next week, so I'm just looking forward to working with him. It's never exciting. Okay, great. Thanks for that. I'm sorry, Edwards. If you're there, please. Sora No, Lorenzo, fee off at the correct pronunciation. No, not present. not present. Okay. Mohammed Islam. If you're there please. Monk, TAs King. If you're there, please. Know. Mr. O'Hanlon.


Are you there?


Not doing very well this morning. No. Is it Mary Kay, I'm not quite sure how you pronounce that. Mary.


Alvin Alvin sim from Singapore fuser Calvin, no. Lisa, Western. There are very few people who actually seem to be on already. If you're a first timer and you would like to say hello, please, please just unmute yourself and carry on.


Okay, well, I can say hello. So I don't know if I suddenly popped up on the screen. So I'm Kristin Forster. And I've only just started to kind of get involved in mediation work. And historically, I've been involved in kind of the development of people psychologically, some of that was with has been with victims of abuse, surviving, and so on. And, and as such, I found myself sometimes drawn into, often as an advocate. And so I'm very much kind of in the exploratory side of coming into mediation. But it's a delight to be here. So thank you for the opportunity.


Thanks, Kristen. Who's breaches that behind you?


Oh, yeah. So I'm not really in San Francisco. I've just hiding the fact that my rather scruffy wall behind me in a small office. All right, anybody else? Oh, sorry. Oh, no, go ahead.


Hi, I'm not exactly a new member. I have attended a couple of these many, many years ago. I retired from legal practice at the end of April. And I'm now looking to develop my mediation practice. And so I look forward to attending many more of these meetings. Hello, Michael. hope you're well.


Hello. Thank you, who's just about to say something? Me. Right. I'm Chuck Coffey. I'm commercial mediator working out of Berlin. I was originally trained and began practice in Israel. And in the September meeting, I'm going to be talking about the new Israeli mandatory mediation regs with you find people. Thanks very much. Anybody else who'd like to? Yeah, go. Hi, everybody. I'm


Yvette Fiddler. I'm a family media to work new leads for Apex family law and direct mediation services. remediating since 2017,


right. Thank you. Any more? Morning, everyone. Hi, I'm Katie jolly. I'm based in hartfordshire. I'm a family mediator with background in child protection. I've been mediating for about seven years. I've earlier this year completed my workplace knee training and accreditation. So now looking to expand into workplace Nice to meet you and always lovely to see other fellow mediators. Thank you. I think we've got time for a couple more. And


I'm I am agenda. I'm teaching the why I'm a solicitor and mediator from Kent, my practice into dispute resolution of various types of legal disputes are being qualified for over 20 years, and I became accredited as a civil and commercial mediator and workplace disputes mediator about a year ago. So looking forward to growing, do more mediations in the future. And considering her the rollout of compulsory mediation, which seems to be occurring right now. Looking forward to him, what if we're going to say that much? Good.


So there's a lady called Sue, who's gonna say your suit super last night. Thank you. And I'm, I'm Sue Nelson. I work for Essex mediation. And we've been operating for 20 years or so in Essex and in surrounding areas. And it's very nice to see so many people here and and to be part of it. Thank you for inviting me. Thanks so much. Okay. Thank you, Michael. Thank you. Well, good morning again, everybody. I, I'm not going to ramble on with a lot of opening remarks. There's nothing worse than going to a meeting whether it's face to face, or by zoom and looking at one or more Talking Heads. But I thought I'd throw out a couple of thoughts. For those of you who read the civil justice report, you may have noticed they seem to have ignored or not noticed or never known that form of ADR. In other words, adjudication has been mandatory and construction for really quite a long time. I think that the Act came into force in 1998. I'm not sure that they I think there's other places they could have looked like looked at like Ireland. And the question I asked myself is do we really understand the nature of ADR and actually that it's a big business for UK PLC. And do we want as the government and other opinion, other people recognise that conflict does great damage to the social and economic framework of the UK? And perhaps Finally, as a first thought, is it fair? We've lost your Michael I think, Michael, you're frozen, but some other other thoughts which I'll share as we go through, but somebody, would somebody like to pick this up? Who'd like to go first?


Michael, perhaps you repeat what you said you blanked it. Is it fair? No, I'm sorry. What you said?


No, sorry. That's right. Sorry. Sorry, my intent. I'm in the Isle of Wight in touch with the integrant connection here is pretty good. But it just wobbled down for a minute. Yeah. Is it really fair or right that the English common law should be developed at the expense of the parties in disputes? That's what I was saying. So perhaps somebody who'd like to start on the whole subject of what is ADR? Should it be compulsory? and so on. So we got Who wants to go first?


Could we use the raise hand function, please? If you if you want to contribute? Who's first? Can't hear Olga elder because who else would like to speak?


Thank you, only because nobody else wants to seem seem to want to. And I've always been rather against making mediation compulsory. I know that mediation is any one type of ADR. And I think Michael Gove has made a very good point about adjudication not really being covered by this report. Because I always felt that if parties were forced to mediate, that could be counterproductive, by quite persuaded by sections in the report, which like him a sanction for not mediating, to those of not complying with disclosure orders or finding particulars. And I'm also find it very interesting that the authors who have mediated say that parties who are reluctant to mediate very often come round to the idea when they see it working in practice. And I think that leads on to the main objective of the mediation, professional, if you can call it that, which is to spread the word about mediation, because there's still massive ignorance among the public. And also, among some lawyers, it has to be said, of what mediation entails, and the advantages that it can bring. Thank you. Thank you, you know, who


else was got their hand up? Okay. That's well.


Hi, thanks, Michael. Very interesting points. And I think even David, and I had this discussion and a lot of while ago, about, you know, compelling people to mediate. And I've been in contact with a couple of people around the world in recent weeks and talking about this very subject, actually. And a professor in Turkey, as one example, turkeys, it is compulsory, to go through mediation. And it's not, you know, foolproof, there are some gaps, but it by and large, works very well. Because it changes, it shifts the shifts and mindset to people going through a process to engage in something and the moment, obviously, it's you have to get everyone around the table. That's the biggest hurdle isn't at the moment, getting everyone around the table. And I think Dave and I were talking a little while ago about, you know, when you get somebody to the table, even at that point, parties minds can shift. And there still can be a good level of indirection, and therefore, you know, proper, you know, acting in good faith, to come to a resolution. But the act of compulsion is not necessarily the problem. It's the I think, as he was touching on as well, it's the education and the understanding of what mediation is. And yes, it advantages, of course, but what the results can be for, I think, Michael, you said this in Canada, in terms of the UK PLC, what businesses will get as a result, you know, what was what smaller companies what families will receive beneficiary wise, as a result of going through this sort of process. Incidentally, Michael, just just to sort of say that Turkey the professor was was explaining that. Now. There's such a difference. loan for mediation services, the problem is now shifted from, you know, the courts of having enough capacity to not being actually physically enough mediators to do the job. So that may be something to talk talk about as well.


Okay, well, that's, that's extremely interest. Who else has got their hand up? If only well? So Julian Whiting? Yes.


Yeah, Kristen will be able to articulate the bits that I miss out. But I just wanted to make the point that having noticed a lot of stuff with big institutions, and then you've got to like David and Goliath, I think if any parties are going to get involved, they need to be absolutely clear, right from the outset, about the the emotional intelligence, but that that's missing, I think, in a lot of these cases. And I think it's quite a big thing for anybody to dare to even go into a room. It's like a courtroom, Michael, which you're probably used to over the years and many others on this platform. But I think it really requires a bit more emotion intelligence before anybody decides to go into this mediation stuff. And I think everybody would benefit more, because it's not all about the money. It's about being heard and moving on, effectively. So I just wanted to throw that in for what it's worth.


Yeah, I just Anthony finshed has got his hand up. Yeah, hang on a minute. I was just gonna make an observation. I was talking about colleague, Sheila Bates about this yesterday, and how there almost needs to be a conversation about


have you. Are you looking for the link? Yeah. Hang on. Dave. You're on mute. Dave, can you mute? That's it.


Yeah, there almost needs to be a conversation about the conversation. Do you see what I mean? And there needs to be a lot more ground preparation. That certainly needs to be a lot more education, because there's far too many people. You know, I've I've got I've got an arbitration where the there was a court that was the litigation has been stayed for reference to ADR. So there was an arbitration clause in the agreement, actually. So that's what we're doing. But there's a lot of confusion. There's a lot of terms that are bandied about even by people who really want to know better. Anthony, do you want to go next morning.


Good morning, everybody. I mean, I have always been against compassion in mediation. But I think for principle more than pragmatic reasons. And you might have noticed in the report, comment by Lord Phillips, when he was LC j, in a speech when he said it's of the essence of mediation, that the parties are prepared to consider forgoing their strict legal rights. And I just don't see why take a turn is simply example. Somebody owes me 1000 pounds, they come up with all kinds of rubbish notification as to why they shouldn't pay it, why should I be forced to undergo some process outside the recovery of that amount in which it's implicit, that I will give up my rights to be paid? So I think it's wrong in principle. But, Michael, Can I just add a question, although this might go on your poll, Jose halsy, comes under attack in the report rarely, and I've heard this from many people. But does anybody have experienced voice so much experience of adverse costs orders, I've never myself come across a cost sort of a failure to mediate. And that's really the only sanction at the moment. And does that happen? in practice? I've asked around, I have spoken to anybody who has suffered or applied for a class order flying from a failure to mediate. So I don't know whether you'd like to try that at some point. But it'd be interesting to know whether his cost orders are rarely made on any sort of scale, which is the only way of sort of compelling or encouraging mediation at the moment.


Okay, well, that's that's very useful thought. Anthony and I are in colleagues in our DB chambers. Everybody knows. I think Louise Clark, you had your hand up. Especially if you are new on me. unmute Louise. Thank we used to be we used to be colleagues as well, didn't we lose?


We didn't need in those in those halcyon days. Yeah. I just wanted to say that I thought that the report was interesting in the way that it highlighted what the existing compulsory processes in various jurisdictions in the family and employment jurisdictions, for example, and the Family Lawyers here will know that better than I financial disputes, hearings are are mandatory, as I understand it, and they seem to take place without a problem. And there are also directions that Court imposes. And since the days of housing in 2004, there's been increasing judicial encouragement to mediate, including the courts making stays for the parties to, to seek to resolve their differences. And latterly, I think, directions where the parties are required to consider ADR at each stage of the process. And and if they refuse to engage in any sort of ADR process, they must justify their position. And to answer Antony. Yes, they have, in recent years been a number of cases where cost penalties have been imposed, and parties have succeeded in being ordered indemnity costs where parties have failed to agree to mediate justifying their decision on the basis that they think they have a strong case. So I think the courts have been moving increasingly towards the position that we're now in. And I see see it as an incremental movement, perhaps. And I think the report also makes it quite clear that, that whilst is not a breach of human rights to impose mediation, there always has to be the possibility of the parties having resort to the legal process, if mediation doesn't work. I think that was the safeguard.


I think it's interesting, Louise, thank you. Just on Anthony's point, of course, we all generally know that even if you've got a slam dunk case, in the real world, you've actually only got a 75% case. So I think that would be part of my answer to your point about claiming 1000 pounds back, because if you get judges got out of bed on the wrong side in the morning, and we've all encountered that in our time, then that it's not 100% certain that you're going to recover even where you think you've got 100% case. I mean, that that would be my thought. I don't know whether you want to come back on on that. And there's risk, there's always risk.


Right? I totally accept your 79%. Point having regard to charge. No litigations entirely political but but my point is slightly different one that, you know, I should be entitled to say, I wish to take my chance with the judge. I know I'm owed 1000 pounds, I feel I should have an open door to justice, if I lose, that's bad luck. Rather than engaging in a process, it's bound to incur some cost and delay. Where, as Phillip said, it's on the essence that I accept that I will forego my strict legal rights. So that's what I'd say that I'm society's principle. I'm a pragmatic view of the matter. Yeah, I think that's interesting. Just before I call the next one, I spent quite a lot of us are familiar with Frank Sanders and his multi door courthouse, which is practice in Nigeria quite a lot. This ism court has has three doors, one for litigation, one for arbitration, and one for mediation. So perhaps there's something much wider than just compulsory ADR at stake here. Who would like to mate who's got their hand up now? Let's see who we got. Martin. Can you see somebody with a hand up? Oh, nobody at the moment. Okay, any? Don't be shy. Anybody? Anybody got their hand up? Okay, sorry. I have Michael. Who's that? Stephen Walker. Hello, Steven. Yeah. Good morning. Go ahead. I was just gonna ask if you were with a big suspiciously quiet, Steven. Good morning,


I wanted to see as the lay of the land. The first thing is that I was encouraged by the report. But I confess to being discouraged by this discussion. There's an enormous sense of deja vu. We've been talking about why mediation hasn't been more successful, why there aren't more people doing it for years. And frankly, to start a discussion like this with Do we need to define EDR suggests that we're engaging in too much nasal navel gazing, and not too much math and not enough marketing. Over the big objection to mediation is often there is no outcome. And the more that people can feel that if they it's worth their while doing this, and one way of doing it is we're all in it together. We've got to do this. I think compulsory mediation is desirable. I don't agree with Anthony Fincham at all. I think it's also desirable from the point of view of marketing. More people have to do it, the more people will get used to it. So I think that it's right that there's quite a lot of hidden compulsory mediation. Lots of contracts could now contain, as you know, waterfall dispute resolution clauses, and they require people to try mediation before even going to arbitration or litigation, and the courts enforce them. So you have contractual compulsion, people do turn up, oh, I'm only here because I've got to be here. And guess what they get caught up in the spirit of the day, they get caught up in the momentum, they settle their problem. I also think it's wrong of Lord Phillips to be constantly quoted, but about his speech in Delhi, or whatever it was about forgoing legal rights. It's a trade off, you're trying to sort out a dispute, one way of doing it is by going to lawyers. Another way of doing it is by discussing it with the people you're in dispute with, and finding out using your own experience and skill, a solution rather than having one imposed on you.


Thank you. Thank you, Steven. Actually, I mean, I've been banging on for some time that actually we should stop talking about justice and should start talking about resolution. Perhaps that's something you were hinting at, towards the end of the remarks. Now, next, I think the programme on Russia today is called crosstalk and there's an American guy does it so we got Michelle. Go ahead, Michelle. wherever you are. Hello, hello, Michel. Now here you are. Good morning.


Good morning. And I've been working for the dental complaint service who are set up and funded by the general dental Council. And we've been doing compulsory mediation for the last 15 years between patients and dental professionals. Feedback from defence unions is actually very, very positive and that in the health care sector, there's a lot of work going in and the optical area, they do compulsory mediation between optometrists and patients. And generally feedback for compulsory mediation is actually very, very positive in the healthcare sector.


Okay, that's great. So I call Dr. Mark Coyle. Dr. Mark. Oh, good morning, Mark. another colleague from OTD chambers. Good morning. Allow me to Okay. Go ahead, Mark. I say so across talk. He hasn't done muted himself despite the offer. Can you? Can you unmute your button?


Yeah. No, ecard. He's got to do it himself. Mark, press your spacebar. Hello, Mark. Good morning. This morning, everyone. Yes, go ahead. Well,


I found all of those things very interesting. But what I did also remember, about 20 years ago, there were arbitrations and stuff like that many, many people have also said that it doesn't seem to have actually gone very much war war was in a rally in this place. I mean, the trouble is, I think people say, great, it's an idea. Absolutely fantastic. And then, at some stage, someone wants to stop it, and cancel it or something like that. And especially I find in the Middle East, people don't actually want to have that service. Because if it's seriously, it's the sheiks and the others, who are just going to see who's going to win or lose, as I know, that's a simple one. But in the Middle East, certainly, it's a bit of a problem. But I think we just need to have to get better people, not us, if you remember the other people. So if you've got a guy who's got a 28 million pounds through and he says, Well, you know, why? Why should we do this, this what what's it called, you know, arbitration or anything like that, they won't do it, they simply won't do it. And I've got quite a lot of money actually out of it if you if you want to put it that way. But they just won't do it. What we need to do is to make sure that they feel that they have a point. I think if that point gets through, I think it will be very good. But everybody here knows that they've got cases, good cases etc. But How to do the person who really wants to be the arbitrator or the other set of it. How are they going to do it? I think it's very difficult.


Okay, thanks, Martin. Martin, should we put up the first poll question? I was just going to share one other thought in looking through the report, I noticed what I called a degree of judicial insecurity. And the judges still seem to want to have their fingers in the pie. And my view is that judges should bat out of this. And if they want to be mediators, arbitrators and adjudicators when they retire, which is an increasing number of them want to do to augment their pension. That's what they should do. But otherwise, they should stick to judging in the courts, and should not be involved in judge led mediation, even if it's not on their case. So who's got their hand up? Now? Let's have a look. Martin, Do we have anybody with their hand up? Currently? Oh, here we go. Christopher Martin. Good morning.


You do? Yes. What is the situation currently in Scotland? The Scottish nation has made it compulsory. All seeking redress or conventional court this has been around for over a year now. And I would certainly agree with Stephen about this. But maybe we should be looking more at what's in England and Wales more seriously. And we can improve the situation. The general feeling is that I've seen coming into small claims court experience of the Scottish.


Thank you, Christopher. Well, Do we have anybody who's any experience of what's been going on north of the border? I certainly don't. got three raise hands at the moment. Julie's car doctor your account and Phil Fiedler. Okay. Well, let's take we've had Louisa will bring come back to the morning events. You want to go ahead? Start to unmute. Yeah. Good


morning. unmuted. Yes. So I'm, I'm interested in it from the point of view of thinking that what makes an effective mediation is motivated people motivated to resolve it within the mediation. And that's what really makes the difference between effective mediation or not, and I'm trying to work out whether it being compulsory helps or hinders with that. So I'm probably more interested in the ideas that they might bring in consequences for engaging with it either benefits from from engaging with it, even if it ends up in court or consequences for not giving it a go or not know, to help improve the motivation. So I can't quite decide yet. But I think there's been some really interesting points made and I thought, Stevens Point about making it compulsory so that people get more experience on it, and they get to see what it's like. And once we get them in the room, we can want to if we can talk to them, then we can get them to understand how it might benefit them and why they might be motivated to take part in it. But I do slightly dread the idea of people coming in compulsorily and just sitting there, crossing their arms and just going not doing it sitting there for an hour. There's also a slight sort of all we really want that going on. Okay,


thank you. Is that who we got next? There were some other people with their hands up mountain? Yes. Toxic carekit chiriaco? Yeah, just before we go to him. There is, of course, this almost halfway house of mandatory mediation, which is how adjudication of construction adjudication works, which actually means that if one party in this case wanted to go to mediation than the other, there was, in other words, the the applying party, then the responding party would have to respond and take part so at least you that to your point, you'd have at least one party that would be would be motivated. Okay. Dr. Curry, aku.


Oh, yes. Hi, it's Catherine. And sorry, guys. I just wanted to say, a couple of points, one about the judges. I mean, they have all that experience, they are forced to retire at 70. And I just think if you expect mediation to be taken seriously, you need a large number of professional people doing it, and why would you exclude them? I just I you know, I just really don't think that it you people should be excluded, you know, unless they actually weren't up to it, which which obviously is not the case. So that's number one point. So you know, it's about professionalising edge. It's about having a sort of better views that the public don't think it's meditation. Although there's nothing wrong with meditation, but it's it's not a business sphere, is it really. And just Thirdly, about whether compulsory mediation should be brought in, on balance, I can see both sides, I really can. But on balance, because of this professionalism side, I don't think it should be forced, because then you, you'll have large numbers of people doing it, they won't be scrutinised. They won't, you know, it'll just be an afterthought for them. And I think you sort of get into problems with the reputational side of it. And so that's just my view,


Katherine, thank you. Actually, I wasn't suggesting that the judges should be excluded. I should was suggesting that they should be excluded while they're sitting as judges once they retire. I say that's no, absolutely no problem at all. March I think we've got Lewis from the Chartered Institute of arbitrators on raised his hands.


Yes, certainly. Thank you, Michael. For those who, who don't know me, my name is Lewis Johnson and most Assistant Director for policy and External Affairs at the Chartered Institute of arbitrators. I think it's there's been some really interesting comments made thus far. I did read the report quite carefully. And I do you think that this is a moment, broadly to be be welcomed, by by mediators, I think we, as the institute have been encouraging greater use of, of mediation and other forms of ADR already, as has been alluded to there is already a foundation have different forms of ADR, notably, adjudication that are already perhaps mandatory, and then also others, ways in which mediation has been introduced into the system is assumed to be a default, I think. It's important whilst acknowledging some of the caveats and some of the details that sit underneath this, not to lose sight of the fact that this could be a very significant development, and it's an opportunity to be ready to be taken. The the points, I think about perfunctory participation, and guaranteeing party autonomy are all very valid. And I think that the real crux of the matter here is is the detail of how anyone would would actually be introduced, although I do think the report was quite compelling. On on both of these points, particularly on the party autonomy point where the court based adjudication will always remain an ultimate last resort for the parties, that's not going to be taken off the table, and no parties are going to be forced into a situation where they have to settle. Again, I think that there are when we think about sort of compulsory processes, we also have to think about potential imbalances of power. And that people aren't put in a position one party isn't put in a position where they feel they have no choice, but to settle, because there's an inherent balance of imbalance of power. I also think just to to, to close, it's important in the Chartered Institute is going to be working with the cjC and the government making an offering to, to follow up on some of the recommendations that have made in this report, because we do think they're valuable. I think the emphasis in terms of the benefits of mediation should rest on improving the scope it has for improving access to justice, and access to redress, and not so much perhaps on the cost implications. I think there is a risk potentially, in the way that this is being presented that it's a great way of reducing costs and pressures on the courts, all of which I think are valid points. But we don't want to go too far down the idea that this is a bargain way of closing the gaps that have been opened up through funding cuts to the justice system. In recent years, I think it has to be seen that mediation is an investment. And it's a useful way of encouraging and improving access to redress. But broadly, I think this is an important development and I think it should be viewed as such.


Yes. Okay. Thank you. So I think the observation I'd make it's only an important development because so little has happened already, which is really Stephen Walker's work, Walker's point, and I agree with Have you also, shall we all word about the benefits of mediation in terms of being able to arrive at what I call kind of lateral thinking solutions, which don't just involve people doing or not doing things or paying money. And the critical other point, which is the possible maintaining of relations, which is, or restoring relations which had been ruptured? Martin, do you want to put up the next poll? Question. The first one the answer, which was who's in? Are you in favour of compulsory mediation? The answer is 61%. of the people on the call voted yes. So we'll do the next one. So next, Julian. Julian. Yeah. Julian, where are you? Bye. Can you hear me? Yeah, hello, June that


Steven made a good point about marketing. Someone also mentioned the issue of AI, that's going to raise the point that people need to be asked, Well, why wouldn't you want to do that? Right? Not about No, you got to do it. So the thing, I think mandatary, the word mandataries sends shivers down to people's spines. And the other question, I was going to ask whether anybody knew of any stated cases where both sides have agreed to actually submit information where when they went through the mediation, these are the savings that were made, because even those people who don't want to get emotionally involved, and they don't want to know, and they get a bit stubborn, even on the money side, that surely must interest in whether it could be major saving. So are there any stated cases where there's clear benefits of mediation?


Okay, thanks, Janet. But while we think about that, who else who else has got their hand up, Martin, and we see some people with Susan Bloom? Susan, where are you? Go ahead. Hello.


I just think following on from what Stephen said, and listening to some of the comments that there really is a need to a make sure that whoever is mediating doesn't just do it. But their professional reputation of mediators is contained by effective training, and proven training with any mediator. Secondly, I feel very strongly as a coach, as well as a mediator, that part of the differentiation between arbitration and mediation is the effectiveness of listening, and the communication skills of the mediator so that clients can reach their own conclusions and outcomes, rather than having any kind of adjudication put upon them. So to that end, both those points kind of reflecting I think, what part of what Stephen was saying, I'm wondering how many people on the call have experienced cultural differences in communication, because there are some cultures where it is far more far in my experience, far more considered, it's considered far more normal, quote, unquote, to be very expressive about how you feel and what you feel than, for example, in the UK, or the US where there is less encouragement of that professionally.


Okay, thanks. I think we better be careful about not going down that rabbit rabbit hole at the moment, although I think, in a way that that was the point that mark Coyle was making about in the there are a lot of cultural differences in the what I prefer to call the Gulf Cooperation Council region. And traditionally, things have been sorted out by local trusted people. And they effectively act as mediators. I don't see him nodding. But actually, they weren't necessarily be trained in accreditors as such, but anyway, I mean, I think that that also brings us to the the R word doesn't tip regulation. The market is very fragmented in this country by comparison with places like Singapore. And in fact, our friends from Singapore might like to comment on that. I forget how many people how many bodies are authorised to accredited mediators, but last time I looked, it was an awful lot. In many other countries. It's one. So who's who else has got their hand up? Pam home. Pam. Pam, are you there? Go ahead.


Yeah, I'm there and from the voice, you might recognise that I'm not Pam humour at all. I'm actually Isabel Phillips from the Chartered Institute of arbitrators, but thanks to vagaries of test and trace, I have had to steal a phone not literally. Well, I


hope I'm on my last day till midnight, so I can actually go out and have a pint tomorrow night.


Wonderful. Wonderful. So um, yeah, so from as low as already mentioned, and terms of the position the Chartered Institute, it's, it's something that I think, is a development, which we've seen around the world that where mandatory mediation, or compulsory mediation is introduced. And there's a couple of things, which is very much how is that implemented, that's going to determine what happens. It's not just about that decision, but one of the things that does fairly consistently happen is that it does begin to change the culture and change the uptake in a way that no other measure that I personally know of does. The other point that I think might be of interest to people who are mediating is I was mediating in the central London county court back in 2005, six during the pilot of the automatic referral, which of course, wasn't quite the same in the sense that you, you couldn't be forced to mediate. But you it was an opt out rather than opt in system. So everybody was was referred. And the result was quite interesting in terms of my experience, particularly of the parties and the lawyers, and the difference sometimes between them. So one particularly memorable moment, which just speaks to the concerns of somebody who spoke earlier. And it was a mediation that had been disputed been going on for several years, very typical case settled, with an amicable basis within an hour and a half of the start of mediation. And because of it being a pilot scheme that was being tracked and studied as it went. So after the mediation, I was sitting with one of the lawyers while he filled out the questionnaire. And when he'd finished that, I said, so So how do you how are you feeling? How do you find find it? And he said, Well, I mean, mediations completely ridiculous. And it's a complete waste of time. And I said, that's, that's interesting. Tell me more, tell me a little bit more. And I said, and, and in this situation, where, where you have a settlement, and in an hour and a half? Oh, well, this is the exception. And I just think that's quite an interesting example of, I think that maybe that changed afterwards. But that the the, the fact that even when people are not injured, enjoying the idea or don't even think it's a good idea, that change partly happens, because even if he stopped to his position, the parties had have something that they were happy with in a way that they wouldn't have otherwise been. And as that lawyer gets, in a sense, forced into mediation, and again, again, I think that's where where that, that attitude, can and might change, and going into mediation, where you know, that one or other of the parties is quite resistant to the idea or isn't enjoying the idea. I think some of the ideas from the the therapy context were seeing somebody as being resistant or anti, when you start a mediation will probably make it harder for you as me as as, as mediator, rather than just seeing it as somebody who maybe just needs a little bit more time and experience but not setting up that in your head is, Oh, god, this person doesn't want to be here. And it's going to be awful. To just a couple of practical thoughts on it.


Well, thanks. It's been it's an interesting observation, of course, about the central London county court scheme, which, in my experience worked very well. That's one of the reasons one of the places that I think probably quite a few of us got started with our own flying solo for the first time, and it was a really good introduction. Who we got Jonathan Johnson, Johnson, somebody rather. Yeah. Jonathan, you there. Go ahead.


Yes, thank you very much. A couple of points. First of all, I must endorse Stephen Walker's points about marketing. For those of you who know, of me, I'm essentially a marketing person. creating awareness is so important than I'm not sure when Lewis was talking about costs. I find that that cost is a great motivator to individuals and indeed small companies to being able to do something very rapidly, you know, that's what interests them, not necessarily the access, which is of interest. One area talking about compulsory mediation, which is what we were talking about, I specialise in special educational needs and disability, most of my clients are that and they have the equivalent of a Miam. And where you have an organisation versus an individual, the local authorities have a duty to mediate, if the individual the parent, mostly of the child in question, would like it, and if they don't want it, they need a mediation certificate to say they have heard about What's it like in Miami in the family court and so forth. But also the The other element in terms of mediation is the emotional side. And when you're dealing particularly with autism, for example, where it is hereditary, I have seen, most times it's come from the parents. And that creates a really, really difficult environment, as well as they're all the emotion that the parents have vested interests, they also tend to be on the spectrum, not that we call it that anymore. For for autism, and therefore, it creates a huge challenge. But the local authorities have the compulsion as their to mediate if the person but if you want, if the individual wants to appeal, they have to have their mediation certificate.


Thank you very much. So we have Tabitha. And just before that, Martin, can you put the last poll question up, please? Thank you, Tabitha, you that go ahead.


Thank you, yes. And apologies that my camera isn't working. I'm really interested to know. And I may have missed it. But is there any expectation of a response from either the Law Society or the bar or the bar Council, some of whose members will probably really embrace these recommendations, and some of whom might well see it as a genuine threat to a process that they believe in? And of course, potentially a threat to some of their fee income? That's the sort of first question. And my other sort of observation is, is it realistic for a judicial system that seems to be suffering from a lack of funding to start having judges also being mediators? Well,


thank you very much, Tabitha, you can answer that's the next poll question. Should judges be involved in mediation? I suppose the subset of that is whilst they're still judges, so you can say yes or no to that one. As so sorry. What was your What was your first point? I feel a bit like Boris at a press conference. Now, what was the first point again?


It was whether or not you're anticipating any response from either the bar council or the Law Society in in terms of whether or not their membership will agree with these recommendations or whether they will feel it is a step too far to make it more compulsive?


Well, I think I think the answer that others may know better than me, but I think the answer is that responses are invited. But I forget quite how that works. But I mean, to pick up point that was made right at the beginning, I think there's, there's there's quite a lot of vested interests who possibly don't like some of this stuff. We've heard a bit about that. And so I'm not sure that this is going to be welcomed with unbridled enthusiasm by everybody concerned. But there we are. Okay, Martin, who else we got with their hands up? Jeff Lewis. Jeff, are you there? Yeah, yes, just do it. Come on.


everybody. Welcome. Just to thank you just to respond to Thomas's question about the Law Society, and maybe just to assist on this one, because I'm on the civil justice committee of the Law Society. And I can tell you that this paper is very much on our radar. I mean, it hasn't been discussed yet. It will be discussed at the next meeting. But there are a number of mediators, including me on the civil justice committee. And obviously, there are a significant number of mediators within the profession generally. So I don't think it without wanting to preempt what people are going to say. And I don't think that it will, it is likely that there will be opposition to what is proposed on the certainly not on the grounds of people protecting their own income. And I think the other point to make from a practitioners point of view, as well as mediators point of view is that I don't necessarily see there being a tension between life in practice as a solicitor, or a barrister, and the concept of mediation. And mediations are good for lawyers, because, first of all, it enables you to get close to the clients. And secondly, it avoids that horrible situation where you've come out of court, having lost and the client says, Why on earth Didn't we settle? So I don't necessarily see a I don't see a tension between life as a solicitor and barrister, and the concept of mediation.


Okay, thanks, Jeff. Well, I totally agree with you. I think that happy clients tend to be people who come back. And if things resolved with perhaps a shared degree of unhappiness between the two or more sides, then generally after they slept on it, they would think goodness, thank god that's over. Okay, I think Roger Levitt, I think Roger, you had your your hand up. Go ahead. Yeah. Thanks, Michael. Morning. Welcome. Great. Great to be here on this sunny day. Well, I was started off a bit slowly but we've got going having I think Steven gave us a bit of an injection of energy. There. We Which was great.


Yeah, I my view is that I don't see any tension between the compulsory element and what we actually have at the moment because I think that would since the cjC report in 2017, were the CMC supportive, automatic referral to mediation, I think we've we've moved further in the direction of compulsory mediation in, in practice anyway, I think most most cases I'm seeing at the moment are either people mediating before they issue because they're not convinced that it's actually a good use of their time to listen to litigate at all, quite apart from whether they could get heard by a court because of the pandemic, or cases where proceedings have been issued. And the court has given a stay, and directed the parties to go where mediate. So I would argue that we're actually we're actually there. Anyway, it's just hasn't been given a label.


Yeah, that's an that's an interesting point, isn't it? It's kind of, in a way, I described as a kind of, Curiously, British fudge, where we sort of got there by a very roundabout means maybe we just need to be clear about what is what is actually happening. Right now. Mike? Yeah. To speak. Sorry, who wants to? Russell Shackleton? Russell, you there. Go ahead. I am. Hopefully my connection will stay solid from this. From what's been said earlier, a number of points that


I do agree upon, I think one of them around, I think we've got some structural questions to look at within the mediation profession. And I think the number of our quality of the training provider providers needs to be something that we need to look at to make sure that we have all got the right level of training. And also things like dispute dispute process where, you know, we have a process for resolving disputes. But whether or not that needs to be something which is much more aware, by perhaps a CMC of mediations are filed there. And that's given a bit more of a boost. So that Pete so that people can see that the profession has actually got more independence and objectivity into it, that may come into it. And the other area, I think, you know, in life, you don't get anything, you very rarely get good things cheap. And I think one of the Oh, we're losing Russell, imagine mediation. I think one of them is around the courts being clogged up. And I think we need to genuinely look at the position with smaller claims, and how they are resolved and cleared in a way and I think perhaps at night, that to encourage some of those to be cleared through to make space in it. There could be arguments for some kind of Levy, which the courts can sort of give to provide to mediate this to actually make make that piece something which is more professional, more professional and dealt with and maybe easy to lower the pressure and elsewhere in the court system.


Okay, thanks, Russell. Peter, Colby. Peter, are you there? Good.


I am. Thank you, Michael, wanted to give a workplace context on this discussion that, you know, it's a really great debate. And I just wanted to give a real life example of where, where we have actually put mediation in inverted commas compulsory manner. And you know, I'm always talking to organisations about changing from grievance procedures to issue resolution procedures. It's a subtle change, but it's how you approach things. And an organisation I was in and I'm talking 15 to 20 years ago, that had, on average 12 formal grievances per week. They were just in the trade unions played a real part in as regards formal processes. We took that organisation to one formal grievance in 15 months, and the way that we did that was was to make mediation compulsory in a way but it was a issue resolution procedure that tried mediation first. And then if mediation didn't work, it then went to a formal process and then it went to a tribunals should it should it be required. And, and by, you know, a few people have mentioned the training is so important that you get the right people to be able to mediate these disputes. And by doing that, and it wasn't just HR people in organisations, it was line managers as well and giving them those mediation skills. Just to sit down with people and understand their issues, and help them to resolve those issues themselves, worked 99.9% of the time, and it was only one, you know, in 15 months, one thing went to a formal grievance. And that lasted 20 minutes, because it was one of these people that just had no sense of rationale. But all of the other issues were resolved. And it was just through talking to people. So, so although we didn't say it is compulsory, we built it into our processes in an issue resolution type of methodology. And when you then get the right people mediating the despues, you then just get completely caught a complete cultural transformation. I wanted to make that point from from a workplace perspective as well.


Okay. And I think Martin, we have the results that 80% of people, what was the results of the poll number three Mountain 80% of those who voted against judges involvement? Okay, so I'm not a complete lunatic. I'm pleased to find that out. Okay. Anthony Fincham. I think you had your hand up again. Go ahead. And to near there.


Is that by mistake? Actually, Michael, I've now taken it down.


Oh, that's right. Now we had some who else do we have? Kristin would like to come back? Oh, Kristen. Yeah. Kristen, just bear with me, sir. And then Alvin, from who's been very patient in Singapore, I was just going to ask you if he wants to make observe an observation just after Christian if that's okay. I don't want to put you on the spot. If you don't want to. That's fine, too. Christian. Go ahead.


Yeah, well, thank you, I just really wanted to come in on the end of what Pete was just highlighting, which is, as I said, my own experience is kind of new, moving from the kind of the developmental my psychological development of people that I recognise in what I'm starting to do, that a big chunk of the mediation very often, in the unbalanced situations, is allowing a voice to be heard and articulated more than it is about the resolution, or at least in in part. And which kind of highlights to me that probably even within the forum, as we've gathered here, today, there's quite a broad spectrum of places where mediation is being used. And, and actually, it probably wouldn't hurt in terms of the marketing, if we could come up with some sort of ways. And almost being able to, to, in an instant, articulate a style of mediation, whether it is kind of resolution, kind of it's it's sort of more legal in nature, or whether it's more kind of that place of giving a voice where there is a grievance, and and and that that element is often less focused on what's the solution is actually what's the process, and has the process therefore, resolved something in me. So I just went and wanted to endorse really by piece was, was kind of presenting that.


Okay, Alvin, in Singapore, do you want to just very briefly introduce yourself?


Thank you, Michael. See me. And Hi, thank you, Michael and Martin, for allowing me to listen into this very interesting conversation. Hi, everyone. My name is Alvin sin. I've just taken over as the next executive director of the Singapore Institute. So yeah, see me? That's right. Yeah. Singapore international mediation Institute. And our role as an organisation is to set and manage certain standards for mediators. We're about six years old, and our journey is still quite six years is not a very long time. Although we are quite novel as an organisation. We don't have any other organisations either in Singapore in, in our part of the world. So we're hoping to do good work area to improve mediate mediation standards, and also to sell the mediation message. The conversations with I've heard this morning, are very interesting and enlightening. And just perhaps By way of comparison, Singapore's mediation journey started when I was a rookie lawyer about like 20 or 20 odd years ago. And I recall that as a rookie lawyer, I was involved in one of the first few mediations in our high court. And at that time, there was initiative to make mediation effectively compulsory. So the judges themselves also doubled up as mediator. So we had a kind of litigation mediation litigation process where mediation would be attempted by the High Court judges and the depending on the outcome, if it were not successful, the judges will Continue hearing the cases. If it was successful, they would record settlement agreement then the state courts, which is the equivalent of our county, your county courts, the family court also had a similar system, which I believe I understand still exists today, the state court judges would actually be mediators, it's a compulsory process. And then, and all cases would undergo mediation. And for good reason, because at that time, we had a backlog of cases around in the state courts as well as the High Court. This was one tool to not only make cases, less litigious, but also turn over the cases faster. I think my experience, then was that, and this addresses the questions that we've been talking about this morning, I think, for mediation to be made compulsory, I think there were mixed results. So I, in my limited experience, remember running a lot to the state courts handling cases at the magistrate level at the district judge level. And the district court level, I think some clients did feel that it was a kind of forced process. And my I came away with the conclusion that some cases would indeed be very suitable for mediation, some others, perhaps not. And it partly depended on the attitude of the client involved. Of course, attitude, I think, is also informed by what the lawyer tells the client and the dedication process is very important. And I think in Singapore, likewise, we're still on this education journey. I believe some people have no idea what mediation is, or what it seeks to achieve. In my I've since moved on to do in House Counsel work in the government. And I've gone through legislative work and public administration and my I just completed a stint with our trade and industry ministry, where I was able to hear about consumer complaints, consumer protection issues, is one of the subject matters of our trade and industry ministry. And I understand that when we try to introduce the idea of mediation to consumers, because it's really not worth Well, for consumers to, you know, spend so much money on lawyers going to court and all that some of them still have the idea that, you know, mediation will will help them win, win. It's I think some of us have said, right, it's really about


fair resolution, not not about like, you know, having an outcome, binary sort of outcome whether you win or lose. So I think with regards to making mediation compulsory, we need to be a bit circumspect. I think we need to sort of inbuilt it into the process, which I think is the case in Singapore, I don't think the High Courts haven't heard at least, that mediation is really compulsory, really pushed, I've got to check the latest practice directions. Certainly, it still is in the state courts, I think. But certainly, it's quiet. And I think we're still in a position where we're trying to see how parties can be nudged to seriously consider mediation and, and make it, you know, part of the mainstream so to speak, in terms of ADR, and even as part of the process. So those are my thoughts. Thank you very much, Mike. Okay, well,


thank you. Thank you so much. Do we have any body else we've we've just got to about 10. Past 11? I think is going to ask Dave in a minute. To to just say something about the next meeting, but maybe we just got time for one more observation. Anybody else want to have a go? There we got with their hands up Martin 20. Julian Whiting wish to say something? Yeah, go on, Julian.


Yeah, I was just thinking back to the judges. Some people made some good points. I think there's obviously some very learned people with lots of experience. But I think the whole system, the legal system, a lot of people come to the system. First time adversarial court judges like there needs to be a whole wash through of how the system has operated this Dickensian sort of situation which people quite understandably run away from. So the whole thing needs to be transformed. I don't think judges shouldn't be involved. But I think they need to perhaps set aside what has hitherto been the norm. It is. And I just think mediation, probably at one point was regarded as guardian reading sort of green issued sort of thing. But I think it's wonderful. And it's great that you guys are doing it. And, you know, it's, I think it's good for everybody. So I just wanted to throw that in. Okay, thank


you. Well, now, Dave, do you want to maybe just say something, by way of kind of parish notices for our next meeting, and also a possible social gathering later on in the year over today? And then we'll, what we'll do is we'll we'll end the formal session, but we'll leave the meeting open, Martin, if that's okay, for a while. You can people that just chat. Over to you, Dave.


Thanks, Michael, about this point about judges mediating. I know, a very good friend with a mediator who lives in Dublin. And they ran a mediation course over there. And they had, I think, eight judges on it, and they failed every single one of them. Because they just couldn't switch mentality. But that's a bit by the by the next meeting is going to be Wednesday, the 15th of September. And I'll send a save the date emailed around to everybody soon on that. And in relation to a social, we were thinking of having a lunch coming up to December, or in December, possibly at the saddle club in central London. So I'll send I'll sense, a date for that. A bit near the time.


Okay, Dave, that might be the inaugural meeting of the media. It is new Breakfast Club dining society. Have a good acronym. Maybe that's not a very catchy title. Okay. Well, thank you, everybody. And thank you for your contributions. Thank you for attending. I think we had a maximum of 50 or so people on the call. And we look forward to seeing you all again next time. And we'll leave the meeting over we could probably leave it open for half an hour or so Can't we Martin? People just wanted the recording. Here. We'll stop the recording and people can just chat so I'm going to make myself a cup, a cup of coffee and

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