Ciarb thanks all of its members who either helped shape our response or responded directly to the UK Government’s consultation on mediation, which closed on 4 October 2022.
Here, we share our submitted response. The Executive Summary is below.
Click to read the full response.
Ciarb’s position can be summarised as follows:
- Ciarb is supportive of the 1-hour telephone sessions, as there is considerable evidence, including the settlement rate of 55%, that many parties are served well by this system – particularly in cases where a brief exploration followed by trading of offers arrives at an acceptable settlement. However, free 1-hour telephone sessions must not be confused with the wide-ranging reforms necessary if the potential of mediation is to be fully realised across the justice system. Therefore, consideration must be given if the case is not resolved as a consequence of the call, as to how parties can be sign posted and encouraged to use mediation as a tool to resolve their ongoing dispute. This should include, where appropriate, support and guidance for the parties steering them to mediation. Ciarb therefore would recommend a review of how these telephone sessions are designed and interface with mandated mediation if the call fails to resolve the claim.
- The introduction of mandatory mediation will benefit the justice system provided that those undertaking the mediations are trained and public has access to redress in the event of a concern. Mediation should not be seen as the cheap option (although it can save costs). For mandated mediation to be successful it should be appropriately funded. Additionally, it will be important to gather data about the success of mandated mediation processes so that the system can be continuously improved. Ciarb supports a system of self-regulation, which already exists, but which can be strengthened. This to ensure that mediators are trained, and that redress is available to the public in the event of a concern.
- We are opposed to the establishment of a single mediator regulator in England and Wales. We believe this would be costly to those practising as mediators and would not necessarily result in better protection for those seeking the services of a mediator. Additionally, it could lead to duplication of regulation for those who are regulated by other regulators.
- All mediators carrying out mandated mediation should be trained as mediators and accredited.
- Mandated mediation should be carried out in line with minimum standards set by professional bodies currently self-regulating mediators in England and Wales and these standards should be presented to the Ministry of Justice for approval.
- A single list of approved mediators, who are accredited and meet the agreed minimum standards, should be made available to the public. The list could be held by one body, but we do not support the need for all mediators to register with that body if they are already accredited with another professional body which holds them to account for complying with required minimum standards and has a process for redress available to the public in the event of a concern. For example, it could be the responsibility of each professional body responsible for self-regulating its registered mediators to supply names of approved mediators to a central list.
- There is a need for greater data capture and analysis to ensure that lessons can be learned from a mandated system to ensure continuous learning, that success can be measured accurately, and any necessary reforms can be based on evidence. This should include whether the mediation was successful as well as other information such as the type of claim, its value, whether the parties were represented, and the point in the proceedings (or pre-proceedings, if possible), when the mediation took place.
- Whatever form the future of mediation takes in England and Wales, it must be inclusive and caters to diverse needs. This means that the mediators should reflect the diversity of the public they are seeking to serve.
Click to read the full response.