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A Call to ARMs

I attended the Civil Mediation Council’s Annual General Meeting this week, and learned some interesting that although the membership of the CMC has waned a little (no doubt due to the ongoing economic pressures on mediators) its membership will soon explode in numbers as it joins forces with the Professional Mediation Association whose 600 members will become CMC members following the usual checks that all mediators meet the requirements for the CMC.

Of more interest to those of us with a view to the future was the CMC’s response to the Civil Justice Council’s report on the development of ADR in civil claims.

Coming off the back of the Manchester Mediation Pilot Scheme the CMC’s proposal is in essence an automatic referral to mediation at each and every stage of the civil claims process, from issue to listing and every ste in between. Automatic Reference to Mediation has the handy acronym of ARM, but Paul Randolph who spoke on the matter went one better to describe the proposal as the Draft Initial Scheme for Automatic Referral to Mediation (DISARM).

The problems such a proposal faces are many and varied, persuading some of the judiciary and the government that the costs will not only be costs neutral but in all likelihood have a costs benefit to the parties in claims and the court system as a whole (dispensing with claims which were always going to settle before they get too far down the procedural highway). Those present suggested getting the judiciary on side was one thing but getting the gate keepers of the process (the lawyers) was another, it should be noted that the as far as I could tell most of those present in some way had a legal background so it was probably a little overdue self-criticism to say that those in the legal profession needed to be persuaded that mediation can save time, costs and stress.

The opposing forces in the legal office of giving advice on how to “win” as opposed to the opportunities to “settle” are influenced by the need for the legal practice to make money. Reluctance has sometimes been seen by me when conducting mediations by lawyers who although saying the right words about mediation do not seem to genuinely want to see the process work (starting the day with “we’ll be out of here in an hour” being a regular occurrence).

What both the CJC and the CMC recognise is that changing how parties view the mediation process as part of the legal process will take time and, despite tap dancing round the word, compulsion.

The CMC’s proposal encourages mediation by ensuring that claims issued without previous mediation are automatically referred to a mediator, the mechanics of how and who are yet to be worked out but let’s assume the CMC will suggest that it will only be CMC members to whom reference can be made.

If a party declines to enter mediation the other party still has the option to adopt the process, even though this may be just to establish a tactical costs benefit later on in the case. The other key part of this proposal is that the costs penalties for not engaging in mediation is dealt with at the first CMC (not packed off to the unlikely event of a trial). I suffered through the costs wars of CFAs on both sides of the legal fence and can see that if the penalties are left to the end of the case to be thrashed out between the parties after settlement there will be a whole new raft of costs cases clogging up the system. So it will be the CMC and the CJC’s job to persuade the judges that inflicting costs penalties for failing to mediate early on “pour encourage les autres” is justified, necessary and a costs benefit overall to the court system.

The DISARM proposal is of course still just that, a proposal, an idea given some substance, the bones awaiting the flesh of a body of work which will gradually see mediation as accepted as part of and apart from our court system.

Once it is embedded into the court system then it will gradually become part of common parlance and practice to the point where people and businesses with a dispute turn first to mediation and last (as the Civil Procedure Rules say is the case) to court.

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