Call 01279 215580

The Trend Is Towards Mediation - Should Lawyers Go On Strike or Accept Compulsion?

Posted: Friday, 4 January 2019 @ 13:43

There is an exorable force towards the use of mediation within Court processes within the UK, Europe and beyond.

Little wonder, many governments are needing to save and the appeal of using mediation is to save Court costs and government exchequers their pennies, pounds, euros and dollars.

Within different areas of law, beit commercial, employment or family, we are heading to compulsion of mediation.

Yet, not everyone is happy.

In Italy, a new law requiring mediation to be used in commercial cases came into effect in Italy on 21 March. 

Italy’s national union of lawyers, the Organismo Unitario dell’Avvocatura, called for a national strike from 16 March to 21 March.

As a means of calling for changes in the law, lawyers across the country were asked to abstain from attending hearings in any civil, criminal, tax, or administrative proceedings, presumably including arbitration hearings, and to send clients letters urging them to sign a form letter of protest.

This can be dismissed as a stunt by greedy lawyers fearful of losing revenue fees; In fact, this is probably the opening skirmich of a number of battles between lawyers and mediators which is going to happen in many places including the UK.

Whilst I am a lawyer and a mediator, I do not believe compulsion of mediation which is already in family disputes and likely to come to commercial and employment disputes is a good thing. 

The fundamental reason does not centre on lawyers having their fees reduced, but rather the mediation community is thus far incapable of providing an effective profession to business and users of mediation.

Consider this. In order to be a qualified solicitor you need to do a three year degree, one year law school and two year training contract.

To become a mediator you do not necessarily need any training. Believe it or not the current family laws do not specify the level of qualification or experience required from a mediator.

Most training providers offer five days training to become accredited. Is this an adequate foundation to become a mediator?

This is a point that many in the so called mediation profession continue to ignore.

If you have to become a mediator in Ireland, it is far more demanding on training and ongoing obligations, but not in the UK.  

It remains extremely difficult for any newcomer to break in as a succesful mediator. I estimate there are no more than 15 full time mediators yet the mediation community still promotes entry into the profession and ignores this.

Sadly, the bulk of people who do mediation training will not use the skill and will certainly not make a career out of it. Is this morally right?

There is something to be said that the mediation community is just one of those which will have over-supply, but the problem should not be ignored and in my view leads to a decline in broad quality of service.

In other words, the problems of the mediation community need to be faced.  

The mediation profession is unregulated and thus far does not wish to regulate itself. I believe that regulation is an absolute necessity for the mediation community.

Yes I believe that individuals should settle cases where they can, but it is time for the Civil Mediation Council to start addressing the problems of mediation within the UK and to fight for the profession.

Within this context, prior to having compulsion of mediation, should lawyers and mediators not try to agree some professional standards?

Hopefully this will be resolved prior to lawyers having to strike! 

Justin Patten, Solicitor and Mediator