Tony Allen: Commercial mediation US-style is another country
Returning from the American Bar Association dispute resolution conference I was struck by how simple life seems here by comparison. It came as a shock to hear a mediator in her forties confide that she had done 3,200 mediations. I calculate that this means most days she mediates around eight disputes. That is not commercial mediation as we know it in the UK.
June 18, 2009 at 04:38 AM
4 minute read
Returning from the American Bar Association dispute resolution conference I was struck by how simple life seems here by comparison. It came as a shock to hear a mediator in her forties confide that she had done 3,200 mediations. I calculate that this means most days she mediates around eight disputes. That is not commercial mediation as we know it in the UK.
Attending another session on differing approaches to confidentiality, I received a handout summarising more than 100 statutory provisions in 20 of the states (leaving another 30 unsummarised). Whether 'less is more' remains an enduring question in deciding what we should import from US to UK practice.
To foreign observers, the alternative dispute resolution (ADR) picture in the US is confusing, with the multiplicity of theories propounded as the correct way to mediate, some of which would be low on most mediators' lists of persuasive arguments to UK parties. To 'transformative mediation' as propounded by Hofstra University ADR expert Robert Baruch Bush, we must now add 'understanding-based mediation', the prime characteristic of which is to operate the mediation (except for private consultations between lawyers and their clients) in joint meeting. The spectrum in the UK of facilitative to evaluative mediation seems refreshingly straightforward.
The vast array of US law schools now teaching ADR means 'schools of thought' proliferate and I wonder whether this is constructive to its development. There is a determination to innovate, yet often little agreement over which fundamentals require change. The word 'mediation' is used to cover a multitude of approaches almost devaluing it.
As two commentators on US mediation, Robert Benjamin and Peter Adler, asserted, "as mediation practice has become legitimised and institutionalised, some of the spark, energy and original mission have been lost," to be regarded as "something to be tolerated, only another cog in the legal machinery". Mediation is, after all, an intuitive skill, deployed in response to the individuals involved. There will be mediations in the UK where we feel the right thing is to run the whole event in joint meeting and there will be others where it is best to accept the parties' desire never to meet.
In a session where experienced litigators defined what they wanted from mediators, they asked for robust opinions to be expressed, though not so far as deciding the case. There is, undoubtedly, a significant cadre of ex-judge mediators in the US willing to express firm views about chances of success to the parties, which would largely be anathema to British mediators, as well as their clients. We have taken a more pragmatic and less theoretical approach in the UK, where most mediation takes place in the shadow of the law, with rights modulating into resolution through the appreciation of risk plus attention to interests.
Judge Wayne Brazil's keynote speech contained a warning about the relatively high cost of US mediation in contrast to the expense of civil justice in the US. Mediation should be about saving costs yet, in the US, judges retire early from the bench in order to enjoy a more lucrative career as a mediator. The UK is still a jurisdiction in which few mediators make a living out of that job alone. For the vast majority it is an extra-curricular pursuit, financed by a 'day job' from other employment.
The private remark of one speaker was that while we should appreciate what the US experience has taught, we should be pleased to be where we are in the UK rather than where they are in the US, with their longer ADR history. We perhaps need to weigh our options carefully when deciding the way we want to see mediation grow rather than let it evolve by happenstance.
Tony Allen is a director of the Centre for Effective Dispute Resolution.
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