This paper will consider:
- The way forward for ‘dispute resolution’ as a process.
- The dynamics of a ‘dispute resolution team’.
- How best to integrate the ‘dispute resolution team’ with other disciplines.
- How to market ‘dispute resolution’ as a favoured approach to conflict.
The way for ward for dispute resolution as a process
“Mediators are experts in getting people to make their own deal”.
Those few members who, with me, trained in mediation back in 1999, will realise just how far ‘mediation’ and the dispute resolution processes have developed since those early days. Then, the focus was on a single, simple process-method of non-evaluative facilitation. Trainee mediators were taught that mediation was necessarily voluntary, confidential, guided rather than steered, and unenforceable. That same year, the Woolf reforms in relation to civil justice signalled a new route; and the real implications of reform (not then fully appreciated) started to show. Now, pursuant to CPR r1(4)2e – CPR r44.3(4)(c) is being used regularly by judges to promote alternate dispute resolution against the sanction of costs. Before commencing civil proceedings in Italy compulsory mediation has been held by the European Court to be compatible with Art.6, opening the way to the use of mediation as a ‘gatekeeper’ to civil justice in disparate fields should any EU national government choose this route. In the USA mediation is ubiquitous. In China, Minister of Justice Wu Aiying told the National People’s Congress (NPC) Standing Committee that, “Mediation should be the first line of defence to maintain social stability and promote harmony.” Consequently, cross-border mediation is rapidly becoming the norm for many international commercial disputes.
In England and Wales there is now a growing number of mediator judges, and a high level of awareness and support for mediation. Sir Bernard Rix, then sitting in the Commercial Court said, “Unless the parties told me that ADR was not appropriate I would make an ADR order in almost every case, seeking to find the right moment so that the process would not delay the trial”. Lord Neuberger suggested that “If mediation and other forms of ADR are to take their proper place in our justice system, they have to be part of every lawyer’s legal education”. “From their first lectures, students should gain a proper understanding that a knowledge and appreciation of mediation and ADR is as necessary a part of what it means to be a good lawyer, as a knowledge of our adversarial system and substantive law.” It seems that Lord Woolf’s vision, “I hope the whole process of mediation continues to flourish” is still very much on track.
Clearly mediation and other forms of alternate dispute resolution are now well embedded within the civil and family justice systems, and with recent cost-saving initiatives from the MoJ this will become more pronounced over the next few years of coalition government.
Mediation as a process is also a changing landscape. Many different interventions now employed by facilitators are not strictly ‘mediation’ as many of us learned it. Compartmentalised thinking about ‘the process’ is giving way to a more holistic approach of sequential mediation/conciliation/arbitration (med/arb); on occasions more directive than facilitative and even including evaluative elements in hybrid forms of ADR. Facilitators (including me) regularly offer a choice of parallel or sequential mediation, conciliation, early neutral evaluation, expert determination and arbitration – using both non-evaluative or evaluative techniques. Additionally many of us are offering ‘conflict risk management’ as a consultancy service, especially in the fields of employment and workplace.
It seems to me that it is no longer enough to offer a simple, traditional mediation format forged on pre-2005 methods. Whilst others are developing and employing a more extensive tool-kit of dispute resolution with success, we ignore this at our peril.
The dynamics of a ‘dispute resolution team’ within barristers’ chambers.
“Mediation is not an event, it is an ongoing process”.
We should move away from simply providing the ‘old mediation model’, to offer a wider range of private dispute resolution options and conflict management services. These would still include mainstream mediation and arbitration services, but should also encompass the hybrid approach to dispute resolution, presenting clients with a truly bespoke service. It is especially relevant for commercial disputes, where time and money are of the essence – particularly in ‘counsel or lawyer attended’ meetings. The first barristers to provide a principal ‘Private Dispute Resolution Centre’ outside London will become a competitive service on the international stage.
In parallel with offering a wider range of services, it is critical that barristers quickly assimilate the newly qualified and accredited mediators within their main practice teams. This must start with the opportunity for all newly qualified mediators to work as co-mediators with experienced facilitators in mediations on a weekly basis in chambers. The writer has considerable experience of the co-mediation model and welcomes the opportunity to skill-share this with others. A co-mediation model, using two trained facilitators simultaneously in the same process may well be the unique, time-saving attraction that identifies a Dispute Resolution Team as the favoured service both regionally and nationwide.
I see it as critical that we offer the widest range of facilitators. Gender and ethnic diversity in family mediation is essential, and local and other public authorities will require providers to furnish details of both gender and cultural diversity under the requirement of their Quality Mark.
How best to integrate a ‘dispute resolution team’ with other disciplines?
“Not many judges would want to be on the bench without the tool of mediation”
I do not see any incompatibility or potential conflict between the ‘dispute resolution team’ and other specialist groupings within barristers chambers. Quite the opposite; I envisage total symbiosis. The ‘dispute resolution team’ should be a cross-discipline group, including members from all of the other teams, including the criminal team. It should feed, and be fed by the other principal teams. The facilitators would promote members of the main teams – civil, employment, criminal and family – as advocates or experts to support parties in appropriate mediations. For example, in a professional standards or corporate misconduct mediation it would be appropriate to secure the involvement of senior criminal counsel to advise as to criminal justice issues. Litigators in other teams will also be promoted to step in should a private dispute resolution fail.
How to market ‘dispute resolution’ as a favoured approach to conflict.
“Mediation is no longer on trial; it has proven success with an enviable success rate”
In effect mediation will be clerked by all clerks within all disciplines, promoting Private Resolution processes alongside court based adjudication. It is important that solicitors and direct access clients are informed of the available options of alternatives to litigation, and the cost and time benefits of such. Clearly, cases will switch in, and out of private dispute resolution, and it is important that clerks divert cases exiting the private resolution service towards specialist litigators within the other teams.
Barristers chambers should be a ‘referring’ organisation. Encouraging more direct access would change the culture in this regard. Barristers should be receiving high quality private and corporate clients in all specialist areas direct from the market place rather than simply on instructions from regional solicitors.
“(The defendant), when asked by the court why his clients were not willing to contemplate alternative dispute resolution, said that this would necessarily involve the payment of money, which his clients were not willing to contemplate, over and above what they had already offered. This appears to be a misunderstanding of the purpose of alternative dispute resolution. Skilled mediators are now able to achieve results satisfactory to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide.
It is to be hoped that any publicity given to this part of the judgment of the court will draw the attention of lawyers to their duties to further the overriding objective in the way that is set out in Part 1 of the Rules and to the possibility that, if they turn down out of hand the chance of alternative dispute resolution when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequence.”
Paper by Stephen Twist, LL.B, FCIArb.,
Barrister, Arbitrator and Mediator (CEDR, CIArb & Med UK)
 Dyson & Field v Leeds City Council (1999); Dunnett v Railtrack (2002) EWCA Civ 303; Royal Bank of Scotland v Sec of State for Defence (2003); Halsey v Milton Keynes Gen NHS Trust (2004) EWCA Civ 576; Earl of Malmsbury v Strutt & Parker (2008), Burchell v Bullard (2005) EWCA Civ 358.
 note AG Juliana Kokott Opinion to the ECJ West Tankers (2005) EWHC 454
 21.07.00 to The CharteredInstitute ofArbitrators and the Dispute Resolution Section of The American Bar Association and ‘Unreliable Evidence’ BBC Radio 4 with Clive James
 for example with modules of e-mediation, already piloted by the author between EU states.
 restorative justice is a dynamic field in which criminal practitioners can gain facilitation skills (and income).
 interestingly back to the model applicable in the medieval Inns of Court