Paul Randolph

Paul Randolph, UK Barrister and mediator, argues that it is time for some form of compulsion to mediate to be introduced in the UK.

The Problem

Imagine for a moment that Mediation is a product – a Stain Remover - that can be purchased from any supermarket.

Almost all who have used it praise it highly. The product ‘does what it says on the tin’: it is cheap, it is quick, and in most cases it completely eradicates the stain; it rarely leaves behind unpleasant odours, is easy to use, and saves much time, cost and energy.

On the next shelf is another Stain Remover called Litigation. Almost all who have used it are highly critical of it. It frequently fails to deliver its promise of success: it is extremely costly, very slow, and in most cases fails to eradicate the stain completely or at all; it nearly always leaves behind an unpleasant odour, is complicated to use, and takes up huge amounts of time, money and energy.

Yet people queue up to purchase Litigation, and shun Mediation. Why?

This bizarre situation, which defies all market trends, was confirmed by Professor Hazel Genn in her research into ARM, the Automatic Referral to Mediation pilot scheme at Central London County Court (‘Twisting arms: court referred and court linked mediation under judicial pressure’: May 2007), in which she found that in approximately 80% of cases, one or both parties objected to mediation. Research in other contexts also repeatedly shows that people are not as enthusiastic about mediation as the Government, the Judges, and the mediation community think they ought to be.

So what is it that drives the public to purchase in droves a product they know to be costly, lengthy and risky to use, in preference to one that is cheaper, faster and has little or no risk?

The Problem Explained

Many will argue that it is a matter of education, that there are still too many who do not know about mediation, and who merely need to be informed. This may be correct, but the sad fact is that UK mediators have spent much of the last 20 years attempting to inform and educate – firstly seeking to raise awareness amongst solicitors and barristers, then judges, the public, financial institutions, insurers and large corporations. Can one remain ignorant of Mediation in this age of Information Technology, where Google can identify any concept, fully define its meaning, and explain every variant of its use, in nano seconds? Or is it simply a case of the public turning a blind eye, and not wishing to know or to explore further?

Throughout history, Christian clergy, Rabbinical teachers, Muslim clerics, Buddhist monks, and Confucian philosophers have all sought to teach the essence of mediation. Abraham Lincoln’s 1850 notes for a lecture to his law students contained the following:

“Discourage litigation. Persuade your neighbors to compromise whenever they can. Point out to them how the nominal winner is often the real loser – in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”

Why have all these teachings seemingly fallen upon deaf ears?

There have undoubtedly been a number of successful conversions in the UK, with many law firms, corporations and insurance companies now fully behind the concept. Even some judges have found that by referring all the boundary disputes to mediation, they relieve themselves of having to try some of the most tiresome futile and wasteful cases in their list.

But still mediation has not unleashed itself into or been accepted by the legal system in the way most would have hoped.

Cumpara Revista Medierea Nr 3-4/2010