Will This Be The Last Mediation Awareness Week?

 

Here we reproduce the address given by FLiP director James Pirrie to the audience at ThoughtLeaders4 High Net Worth Symposium (20/01/21) on the benefits of mediation, arbitration and the future of DR/ADR in the post Covid World. 

“This week was Thought Leaders4 “mediation week”, supporting Resolution’s mediation week that runs nationally and annually. How great if it could be the last.

Things are moving fast. We last saw a Prague Spring moment back in 2007 when suddenly there was a shift in attitudes to post separation parenting.  PAP, SPIPS, Christina McGhee, Duncan Fisher … and of course Ed Balls (in the pre Gangnam Style days) ‘Children’s Summit’ that forged a powerful alliance between not for profits and agony aunts/uncle. They were heady times … a wave that ultimately receded leaving us with rather less than we all hoped, I suspect because we failed to convert enthusiasm into changes in practice. Perhaps this time it will be different.

The rocket fuel for change today has included Me2 and the multidisciplinary instincts that were boosted by the collaborative movement. It also builds on 2007 and the increasingly present and insistent voice of the child. But obviously and more immediately, there is Covid. This has seen people locked at home needing to find solutions to their problems rather than ways to progress their litigation. It has forced us to recognise the power of online process beyond anything imaginable a year ago.

Alongside and I think more powerfully still, there is the associated challenge of an already overloaded court service, already drowning in work and now facing more demands upon it (more issues to solve and increased complexity in those issues), alongside reduced capacity to deliver. This arises from first restrictions in court time through precautions but secondly reduced court presence, as those heroic people on the front line are picked off by this terrible virus. The court system is crying out for help to take the crowds from its doors.

It is tragic and horrific that we are here but it is also a confluence of opportunity to change the way that families manage change – and perhaps we are being handed a responsibility too. We owe it to our courts and all that they are doing for us to do our best to support them. And we protect the court service by building our skills in this away-from-court domain.

We are all here as users of services and providers of services and the intention of today is to deliver take-aways as regards intake: how do we make the cases happen (as user as provider) and as regards delivery: how do we perform better in the away from court environment again both as a consumer and a provider.

As this movement progresses we will need to have 3 things to the fore:

First, tolerance and respect: We should recognise that none of us have the one best way of helping clients that all others must follow. We do our work our way which works for us. Whilst a colleague may mediate/ or arbitrate or anything else in a way that we never would … if it is ethical and safe and effective then we should welcome that work as part of a tolerant broad church of Resolving Issues Together.

Secondly clients first: Our guru and guide Angela Lake Carroll has been saying for some years now stop thinking in silos what I see her meaning by this is that we should stop thinking

• about distinct process tracks …
• that training is for one process; and
• that if a process is adopted that it runs on a clean and clear unique set of rails.

Instead our help for our clients should be tailored to them – to address their needs and recognise their capacities. We should not think about a process first and then trying to cram our clients into it and rather think about the clients’ needs first and then identify the process or variant of process or series of process that will see matters to the conclusion they need.

Thirdly, we need to change clients perceptions of court. Many of our clients come to us thinking that only the judge can see the truths of what they, the client has been through and only a judge will impose justice. But the realities are that this judge is just another lawyer yes brilliant – but way more rushed than us – at perhaps best thought of at the top of a windswept and dangerous mountain with potholes all the way that costs a fortune to climb. There is no particular reason why they will have a magic of insight or solutions that (with proper support) are beyond the imagining of clients on the lower slopes (or even still in the car-park).

So often when the individual arrives at the end of the climb up they find the judicial hut surrounded by lots of other people who all want their ten minutes too – and for whom the realisation is dawning that this is not what they expected and is certainly not what they need.

If our clients had any doubts, they should consider what the judges themselves are trying to shout out above the roar of the storm:

• HHJ Wildblood in re B “do not bring your private law litigation to the family court unless…”
• The President’s “View” in Nov 2020: “the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be”
• “It is the duty of the parties and of the court under Rules 3.3 and 3.4 to consider alternative means of resolving the dispute. The court will need to be satisfied that the parties have properly explored such means”  HHJ Martin O’ Dwyer March 2020
• “…silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable” (Lord Justice Briggs, quoted by Mostyn J in Mann v Mann) a movement culminating in:
• OG v AG  “if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.”
• And then just a couple of weeks ago, again from the President again: “there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.”

Our clients should hear what is being said that justice from the courts will be brusque because that is the best that can be done  in the circumstances. Of course we are all sharing our thoughts here in the choir: we are all converts. But that does not mean that we cannot share our strategies on how we help make our views clear to clients in a compelling way … that this is not The Last Jedi when Mark Hammill changes his mind and imparts wisdom in the end.

• “Judges really don’t want to see you.”
• “Embarking on a court process expecting to do a deal along the way is a seriously dangerous and I would say a flawed strategy.”

I  wonder where we will be by the time of “mediation week” next year.  I hope there will not be a mediation week, because we have learned that clients need not a silo-series of process options but a commitment from us to help them resolve their issues together.

I hope it will not be Alternative Dispute Resolution week either – because:

• The norm is to resolve issues together;
• The other thing at court is ‘dispute’ resolution;
• And court is not the default but the alternative.

In the coming twelve months perhaps we might have as our reminder a quote I have only just found from Antoine de Saint-Exupery

“If you want to build a ship, don’t drum up the people to gather wood, divide the work and give orders. Instead teach them to yearn for the vast and endless sea”

If we yearned to change what we now have, we might not need mediation week, because instead we would have the instinctive provision for clients of the services and support they truly need.”