An explanation of Mediation in the light of the Law Society Council decision regarding the LCCSA/CLS
This week the Law Society Council,of which I am a member,passed a motion stating
“That the Society, in the exercise of its representative function, should – (a) By letter invite the claimants to propose mediation, with a stay of proceedings for that mediation, with the option that the Society be involved in that mediation; and Offer to pay the claimants’ costs of that mediation up to a maximum of £30,000.
2. Provided that the Society’s mediation invitation is accepted by the claimants, and if the offer of the mediation is not agreed to by the government, or if the mediation takes place but is not successful, offer the claimants the sum of £45,000 in respect of their costs of the judicial review.”
The assistance is in relation to a Judicial Review application which the London Criminal Courts Solicitors Association and Criminal Law Solicitors Association have issued against the Ministry of Justice over its plans to reform criminal Legal Aid by means of introducing Dual Contracts for own client and Duty Solicitor work.
Duty Solicitor work means on call rota work by solicitors at local police Stations and Magistrates Courts.
Under the circumstances I thought I should explain precisely what is involved in Mediation.
Mediation could only take place if both the LCCSA and the Ministry of Justice agreed to it.
This is because mediation is a consensual process which cannot be forced on anyone.
It is a process which demands the active participation of both parties who must be willing to attempt to come to a solution which they both can live with.
The difference between Mediation,as opposed to arbitration or litigation,is that a settlement decision is not imposed by a Judge or Arbitrator. The parties themselves decide the outcome .
Both parties remain in control and can walk away from mediation at any time.
A Mediator is not a Judge.He or she does not decide the outcome of a case.
He or she acts as an Independent facilitator.
The Mediator helps the parties to talk to each other.
The Mediator can be told things ,in confidence, by either party to a dispute ,which the Mediator cannot share , unless the party sharing the imformation gives their consent to do so. A Mediation takes place on a without prejudice basis.
If Mediation does not lead to settlement then ,what happens in Mediation ,cannot usually be referred to during litigation.
I have been an Accredited Mediator since 20005. I was trained by the Centre of Effective Dispute Resolution.
The process of mediation I was taught is as follows.
Firstly the mediator calls both parties into a joint meeting.
The Mediator explains his or her role. Both parties have the opportunity to give a five minute opening speech.
Once this process is complete both parties retire to seperate rooms and the Mediator comes to see them,in turn,in their own rooms.
The mediator will then,as and when he or she see fit, call both parties together for a joint meeting to see if they can come to a joint solution . If both parties agree then their Legal representatives can also be present in order to draft the terms of the agreed settlement.
During the course of the Mediation the Mediator has several functions. The Mediator can act as a Sounding board for either party.
Both parties can share confidential information safe in the knowledge that the information will not be shared without their consent.
The Mediator can challenge the stance taken by a party if he or she wants to show that a particular stance would be harmful to the process of Mediation.
The process of Mediation also allows a display of emotion,between the parties ,or between a party and the Mediator which is not possible,or encouraged,during the process of litigation.
Mediation can be a comparatively cheap and effective means of settling disputes.
However it does not settle all disputes.
That is dependant on how willing parties are to negotiate.