OPINION MEDIATION
Margaret
Bickford-Smith Confidentiality is the cornerstone of mediation. But we must find a way to make potential users understand the process
Margaret Bickford-Smith QC MCIArb (bickfordsmith@ crownofficechambers.com) practises as a mediator from Crown Office Chambers. She sits as a Recorder and is a former Chair of the London Branch of CIArb.
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WHAT ARE THE MERITS OF touted as a quicker and cheaper confidentiality in alternative way out for disputants keen to dispute resolution? This article airs cut short their involvement in some ideas prompted by the costly litigation. recent BAILII Lecture of the Lord But to over-emphasise these Chief Justice of England and Wales, aspects of mediation is to Lord Thomas of Cwmgiedd. underrate its real advantages. Lord Thomas draws attention What a well-conducted to the diminution in arbitration mediation can offer is an appeals, which he believes will opportunity for early settlement lead to difficulties in the proper within a short time-period when development of commercial law. the parties can focus on the issues There should, he says, be greater that are important in the dispute, scope for appeals from and the practical imperatives that arbitrations, less referrals to are important to them. Success arbitration, and more input in settling the dispute will cut from the courts. short court He points with proceedings, and concern to the US save substantial The decision in experience, legal costs and Farm Assist Ltd where arbitration personal/ v DEFRA that is widely used as internal in limited circumstances a it is quicker and management mediator can be cheaper for time. called as a witness disputants, and This demands to what occurred proper apt to reduce the in a mediation – burden of preparation by though criticised by the parties, in litigation upon some mediators, overworked assembling and was welcome courts. This, passing on their he considers, mediation undermines aspects of US law’s material, and by the mediator, development. He views with who needs to be familiar with it. coolness the perceived advantages In mediation the aspect of of arbitration: in particular he confidentiality is paramount: considers the merits of indeed UK mediation practice confidentiality overrated. depends upon “double The purpose of this article is confidentiality”. First, no party not to comment on the to a mediation is supposed to arbitration/ litigation issue, but to divulge information about the consider confidentiality in course, or maybe even the mediation, where some similar existence, of the mediation. arguments can be made. Second, within the mediation itself Mediation can be seen as a no party may without consent useful way to reduce the pressures divulge, in particular to other of court business for a court parties to the mediation, what service eager for cost-cutting happens in a confidential caucus. measures. And mediation too is Consent to convey factual
information, or an offer, may be given to the mediator during a caucus, but that consent is expressly circumscribed; and when the mediator and a party discuss exactly what might be useful for the mediator to tell other parties, this is the opportunity for the mediator to use experience and talent to help progress discussions. It cannot be a surprise that courts are wary of confidential processes they cannot control. The decision in Farm Assist Ltd v DEFRA, that in limited circumstances a mediator can be called as a witness to what occurred in a mediation, though criticised by some mediators, was a welcome development, I believe. On public policy grounds it could never have been right for a mediation to be conducted in a grossly unfair way without opportunity for redress. But confidentiality in mediation has another result I fear the mediation community has not addressed. Although legal professionals themselves are now familiar with mediation (and many are highly sophisticated in its use), all too many potential users – individuals and commercial operators – simply do not understand what a mediator actually does. A body of consumers who, through lack of knowledge, view a mediator’s role as somewhere between do-gooding and the black arts is not a good foundation for the development of this valuable mode of dispute resolution. A little light needs to be let in, somehow, to illustrate mediation in practice.
THERESOLVER | May 2016
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21/04/2016 13:02