Updated: Jul 10, 2020
This week Sir Geoffrey Vos, Chancellor of the High Court, said that in order to beat the backlog that threatens to overwhelm the civil justice system later this year we need to integrate ADR into the heart of the civil justice system.
I asked Tony Guise, Director at DisputesEFiling, if he felt this was a fair summation from Sir Geoffrey. Tony said:
"He is right. On 11 June HMCTS reported that 23,000 civil justice hearings had been adjourned. There are estimated to be 120,000 residential possession cases waiting to be unblocked. With announcements this week from Boots and John Lewis of thousands of job losses and store closures the economic fall-out from Lockdown is just beginning. This will give rise to a huge number of civil claims that will turn the Backlog into a Tsunami of Litigation."
I'm not going to argue with Tony - he knows his stuff, and when he uses phrases like "...a huge number of civil claims that will turn the Backlog in to a Tsunami of Litigation" it makes me think of opportunity for mediation and for mediators.
But with opportunity comes risk and I am afraid the risk for mediation is the lack of trained mediators. My view differs from many in the mediation profession, at the highest echelons people believe there are too many mediators and not enough opportunities for them.
But is this true, and if it is true now would it be true if mediation really took off at the levels it has been expected to for the last decade? If mediation was the key to alleviating the upcoming Tsunami of civil claims, could it cope?
Anecdotal evidence suggests c. 4,000-6,000 individuals have been trained in the UK as civil and commercial mediators over the last 30 years. On the face of it some are arguing that means we have plenty of mediation cover. But we need to consider that of those say 6,000, some are no longer with us, some are retired, some followed a different career path, some have not mediated at all since they were qualified (and now their qualification is obsolete without some retraining) and some never intended to mediate in the first place (people train for a wide variety of reasons).
Of those who are left, I would say upwards of 90% could not handle a rapid increase in mediation. Many are employed within solicitors, barristers and other professional services businesses. They could not afford mediation to be their full time job, especially for the sort of rates which are most likely if mediation is to become the norm (i.e. rates which are below what a firm would expect from a fee earner). Whilst some of these would continue to take cases to keep their arm in, it is unlikely that they would seek full time mediation over their existing hard fought career path.
So once we drill right down to the bare facts there are very few mediators who would be available to deal with high volumes of mediation - online or in person. I look at my own panel. We have around 60 mediators. They vary in experience from being newly trained and having no experience to being vastly experienced. 90% are employed by other people and have to fit mediation around their day job. Looking at other panels you see many of the same faces actively looking for work as a mediator - but most demand fees of the level they would expect to be paid in their professional capacity - and those who don't at first soon get bored of doing cases for lower fees.
I believe we need more mediators. We need more because having small numbers doing large volumes is not sustainable. Barrister, Michael Bready, comments:
"With the backlog of civil disputes growing daily and Judges in every jurisdiction throughout the UK and Ireland encouraging parties to consider mediation there has never been a more opportune time to qualify as a mediator. Mediations online and in person, will be an essential element of ADR in the new normal. Parties will need ready access to a large number of mediators who can provide mediation dates quickly. Never before has mediation been such an essential gateway to accessing justice"
Michael's comment "Parties will need ready access to a large number of mediators..." is the crucial point. Without a large number of properly trained mediators, able to mediate online or in person, it is likely that any move to see through the mediation revolution will be doomed to fail before it begins.
Matthew Finn, Managing Director at Ankura, adds to this by saying:
"In an ever changing commercial world following the aftermath of the COVID-19 pandemic, it is likely that we will see an increase in commercial disputes. It is important to consider this now and ensure that we are equipped for this by ensuring we continue to train and develop our skills in dispute resolution, as mediation forms an extremely important ADR process it is vital that professionals are suitably trained and competent when involved in mediations whether that be mediators, counsel, experts and others."
Matthew's observation that we must continue to train and to develop our dispute resolution skills is central to my own thoughts as a vital component to make sure that we are all ready and prepared for the avalanche (or Tsunami) that awaits.
But training has always been a risk. Mediation courses are not cheap. They range from c. £1,000 to c. £6,000 depending where you train. Even at the lower level, those who want to get the skills used by a mediator with the intention of using them as a mediator are taking a gamble. To qualify as a Civil Mediation Council accredited mediator you must undertake (and pass) a 40 hour (minimum) course. It is intense and most courses run through a working week.
Nobody can guarantee work. Nobody can. I speak to many mediators and have done for 25 years. Membership of panels is good for your CV but leads, for most, to very few if any opportunity. It is a very competitive market and the early adopters still get the vast majority of high paying work.
But now I feel is the time to take that risk. As Tony says, there are opportunities arising from the effect that COVID-19 has had on the court system in the UK. As Michael says, it must surely lead to more mediation being required.
One initiative we started recently was to encourage University students to get a better understanding about the benefits of mediation and ADR in general. I feel this is the most valuable ADR project Hunt ADR has engaged in - we are informing our future business leaders about the importance of mediation and encouraging them to take the next step, to become mediators themselves.
These are the leaders of tomorrow and of the hundred or so who have started the course so far the split of disciplines is interesting to say the least. Whilst most participants are studying law, we have students studying history, archaeology, criminology, biochemistry, politics, economics, the classics, marketing, international relations, mathematics, HR and psychology from Universities across England, Scotland and Northern Ireland.
We are not the first to encourage University students to train to be mediators - others have been doing so for some time and that is great. Where we feel we differ is that we are going direct to students and encouraging them to learn first to see if they have an interest and then to develop that interest. We are encouraging them to come from different backgrounds and not just the law. And we are doing this in the hope that a significant enough number can choose mediation in the next year or so as a career path. That's how serious the development of mediation is now in the UK and Ireland. There is a potential career path for many for the first time.
So, going back to my initial thought. Are there enough mediators for a mediation revolution? No. Absolutely not. And now is the time to do something about it. You can do it with us or you can do it elsewhere, we just encourage you if you are looking for a new or different career path, to consider the opportunity mediation could give you. Mediation is here and all indications are that it is here for good.
If you are interested in training as a mediator with Hunt ADR or you are a sixth form or university student and you are interested in the Certificate in Alternative Dispute Resolution, send me an email and I will reply to you in person. Likewise, if you just want to know more about mediation and its benefits to business drop me a line for a virtual coffee.
Gregory Hunt is the Managing Director and Founder of Hunt ADR Limited and has been active in ADR since 1995, making him one of Europe's most experienced ADR professionals. He is an award winning Registered Mediator and leads Hunt ADR's training activities. He is on mediation panels for Hunt ADR, Clerksroom, Kearns Mediation, The Chartered Institute of Arbitrators and 41A on Mediation (South Africa's newest mediation provider). He is a guest lecturer at the University of Exeter and at the University of Hull.