Mediation and government

This speech was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Lord Faulks QC's keynote speech at the Civil Mediation Conference on 22 May 2014.

Sir Alan, ladies and gentlemen.

I am grateful to Sir Alan and the CMC Board for the opportunity to give the keynote address at today’s conference. It is a pleasure to be here.

It is also my privilege to be the Minister of State for Justice, with responsibility for mediation in civil justice.

It is now around 20 years since mediation in civil proceedings began to be used in earnest in England and Wales, with higher value commercial cases. Lord Woolf’s review of the civil justice system in the mid-1990s provided the impetus for courts to encourage the wider use of mediation and other alternative dispute resolution methods to resolve disputes.

These changes were enshrined formally into court processes through the civil justice reforms introduced in 1999 and in the resulting Civil Procedure Rules.

It is perhaps a little early to mark the 20th anniversary of the Woolf reforms. This conference, though, is still an opportune moment to take stock of mediation in civil justice. It is also a perfect occasion to consider how the government and the mediation community can best work together to achieve what should unite us all: helping people to resolve their disputes effectively, efficiently and fairly.

In its consultation paper ‘Solving Disputes in the County Courts’, published in February 2012, the government said that it wanted: “to deliver a [justice] system that prevents the unnecessary escalation of disputes before cases reach the court room”.

That remains very much our aim. We all accept, I think, that mediation is not a panacea. Government will always have a role in providing a court system to enable people to access justice. But the success of mediation and other dispute resolution methods in keeping unnecessary litigation out of the courts is a key cornerstone of an efficient and cost effective justice system.

You may say that ‘these are good words, but what is the government doing to promote the use of mediation?’ There have been a number of important developments.

The government’s introduction of the Jackson reforms on 1 April 2013 should give impetus to mediation as one way of managing and controlling litigation costs, although it will be some time before the full impact of this is clear.

The government is currently consulting on proposals to put the EU Directive on Alternative Dispute Resolution into our national law by July 2015, which will help to maximise the benefits of ADR for consumers and businesses.

My officials, and those from the Department for Business, Innovation and Skills, are playing an active role on the new Advisory Group, chaired by Professor Richard Susskind, which is reviewing the potential for innovation in mediation via online dispute resolution.

Under the Dispute Resolution Commitment launched in 2011, government departments and their agencies continue to set an example in using ADR to resolve their own legal disputes which might otherwise lead to a court or tribunal hearing. This commitment, and its predecessor the ADR Pledge, have saved taxpayers at least £400 million. We also looking at how we might give further prominence to the Business Dispute Resolution Commitment we launched in 2012.

On small claims, HMCTS has expanded and centralised its Small Claims Mediation Service. All cases with a dispute value of up to £10,000 are now automatically referred to mediation, without judicial intervention, where all parties request it.

This service is now considering over 10,000 referrals a year, helping people settle disputes earlier in the proceedings, and so far saving over 9,400 hours of judicial hearing time. On average 64% of cases referred to the SCMS settle. By a recent survey 95% of SCMS users would use the service again.

This is good news but I know that you will want us to do more. I know particularly that some mediation providers are reporting a fall in the number of referrals. In many ways, this is a challenge to providers to position their business to make sure it can succeed in the market place. It raises, though, two related solutions from government: signposting from courts and compulsory referral to mediation.

As everybody knows, this government is dealing with an unprecedented financial challenge and we have no choice but to look for savings. We have looked at everything the Ministry of Justice (MOJ) does. Including making significant staff reductions in our HQ.

These difficult choices mean that I cannot promise a return to MOJ support for a national mediation helpline to signpost from courts to providers. Instead, we have been working with the Civil Mediation Council and the National Association of Mediation Providers to see how we might improve the Civil Mediation Online Directory and raise awareness of the benefits of mediation in courts and improve signposting to providers.

We have not made progress as quickly as I would have liked, but I am pleased to say that by the end of the month every court will have information available to promote the services of the National Mediation Providers Association and encourage referral.

The judiciary will also have access to this information and are keen to promote this service to court users. Leaflets will also be made available to customers wanting to know more about mediation on GOV.UK.

HMCTS continue to promote mediation on the directions questionnaire, a key stage in civil litigation, and will consider with the judiciary the introduction of a standard paragraph on all orders to encourage parties to mediate and to advise them that the court may penalise them on costs if they unreasonably refuse to attempt mediation.

MoJ is also willing to reconsider compulsory mediation information and assessment meetings – or MIAMs – in civil claims for the first time since our ‘Solving disputes’ consultation paper in 2012.

At the time, a slight majority of consultation respondents were against our proposal to introduce MIAMs for cases up to a value of £100,000, on the grounds that parties should follow existing pre-action protocols to avoid litigation and because of fears that a compulsory stage might add unnecessary cost and delay.

Those remain genuine concerns, but we can draw on the recent lessons of family justice. This government has now legislated so that, from 22 April 2014, proceedings in the family court cannot begin until there is an outcome of a mediation information assessment meeting. I must stress that I can make no commitments on this and we have no plans at this stage for further legislation, but it is right that we look again at the case for MIAMs in civil claims.

Sir Alan, ladies and gentleman, this government believes that to promote the effective use of mediation, where appropriate, to manage and resolve disputes we need high quality mediation information, services and standards.

I know that by its proposals for incorporation and for seeking charitable status, the Civil Mediation Council is positioning itself to meet this challenge and to continue its excellent work into a second decade.

We welcome the Civil Mediation Council’s proposals to implement a new registration scheme from January 2015 and to extend its reach beyond mediation providers to cover individual mediators and mediation training for the first time. We will follow closely how this Scheme will work towards further building public confidence in mediation and mediators.

We also share the Civil Mediation Council’s view that the take up of mediation and dispute resolution can only be improved by the development of shared consistent standards and learning. Whether the context is civil, commercial, family, workplace and whatever the background of its practitioners, they will need many of the same core skilled interventions.

This is not a call for a ‘one size fits all approach. Nor does it ignore the very real issues which exist in, say, family mediation, around child protection and domestic abuse.

But in rising to the new challenges the mediation and dispute resolution community have much to gain from exploring common ground, maximising resources, learning from each others’ learning and research – not least on the evidence base for the benefits of mediation – and reducing unnecessary fragmentation.

The benefits of speaking with one voice will not come from coercion. This government does not support the creation of monopolies for their own sake. There are many players in the mediation and dispute resolution world, including the NMPA, College of Mediators, the Professional Mediators Association and beyond. I warmly endorse the Civil Mediation Council’s ambition to engage and build closer links across the mediation community.

Sir Alan, ladies and gentlemen, I know that you are passionate about what you do. Your passion, skills and values will be vital to the development of government policy on mediation and dispute resolution in years to come.

That is my final message. I have set out the resource constraints that we are under. But I am open to your constructive proposals for how government can help. I look forward to hearing your views in the panel session which follows. And I wish you a stimulating and productive day.