Let me kick off with a little background. As you'll gather from the title of my talk this evening - Six Things I'd Change if I Could - I believe that if mediation is to thrive, then change is necessary. I don't expect what I'm about to say will make me popular, so before I'm chased from the room under a hail of biros and Blackberrys, let me at least offer some background as to how I came by these views.
The first thing you need to know is that I am basically a journalist. So if you find me unbearably sanctimonious, sensationalist, and hypocritical, please understand that I'm only maintaining the best traditions of my profession.
Since the mid 1990s I've been a legal correspondent in various guises. Over that period, I've interviewed thousands of lawyers in scores of countries. I've written about hundreds of legal cases, and spent many hours sitting in court.
My view, therefore, as I've suggested in other seminars, is "from the touchline"; as distinct from my fellow panel members, and many of you, who are very much on the pitch.
In coming to a view as to the market as a whole, I think not being on the pitch has its advantages. First, access: at present I speak to almost everyone involved in the market, and I do so not as a competitor, but as interested and critical fan. Another advantage to reporting on, rather than participating in, the process is a duty to ask awkward questions; to get at what the market is really thinking without having to pitch for business or attempting to improve my service.
Turning to mediation, then, among its most striking characteristics to the outsider, is the hefty wall of paternalism which surrounds the field. In many ways this is great: people take ownership of the sector, and give freely of their time in trying to promote it. The downside is that criticising mediation causes deep and personal offence to those who've invested so heavily in it. The result is that on the whole, it's not done. Partly, I think this stems from a fear of strangling the babe in its crib, but mediation has moved beyond that: it's 20 years old in the UK, and I think would benefit from some bashing into shape.
With this in mind, I'd like to spend some time looking at what mediation hasn't achieved, because this in itself is a problem and a catalyst for many of the market's current difficulties. But first, let's look at mediation's public profile 20 years on.
It would be hard to imagine that anyone involved in contentious work since the Woolf Reforms has not heard of mediation. Lord Woolf himself is now a mediator, among other things. Cherie Blair, likewise, is also a mediator. Former Court of Appeal judges Sir Henry Brooke, and Sir Jonathan Parker are mediators. Other judges, like Sir Gavin Lightman, have moved into mediation, and serve to bolster and enhance mediation's profile. Add this to the fact that it's pretty hard not to consider mediation in any High Court dispute, and it's easy to imagine that mediation is another solid, enduring pillar of the legal system.
It is no such thing.
Cut away mediator training - and we absolutely should - and what you're left with in the UK, is enough work to keep at most 50 professional mediators tolerably busy and tolerably paid.
And this is mediation's dirty little secret: it's barely happening at all.
There's no reason to believe this state of affairs can't change, but as a community, this is something we must come clean about.
Churchill once said that "However beautiful the strategy, you should occasionally look at the results." For mediation, the results aren't pretty.
To visualise mediation's marketshare in comparison to litigation in the UK, take an A4 piece of paper and draw a square with sides 1.3cm long. That tiny box relative to the piece of A4 is mediation's bite out of the litigation market after 20 years. And that is calculated on the almost recklessly generous assumption that there are 6,000 commercial mediations a year in the UK. Accurate figures don't exist, and that box could be half the size.
I've heard a lot of litigation partners recently bemoaning the fact that litigation hasn't rocketed in this recession as it did in the last. Some attribute this to the rise of mediation. I believe that they are deluding themselves. Indeed the very notion of competition between mediation and litigation brings to mind the former England cricket captain Graham Gooch's (I think) only memorable quote: asked to compare England with Australia going into the 1990/91 Ashes Series Gooch concluded it was like a "fart competing with thunder." The comparison, I think, is equally true of mediation and litigation.
Concealing this fact, or ignoring it because it's inconvenient, has taken a devastating toll on the functioning of the market in the UK. It has permitted oversupply of mediators to reach scandalous levels. In turn this ensures talented new entrants are kept out, or will never enter the market in the first place. And it makes mediator selection, for most buyers, a lottery, and a purchase to which they attach very little value.
So here's the first thing I'd change: let's get real. Let's accept the reality of the present, and looking forward, craft our plans proportionately and appropriately.
2. Returning, then, to the current state of the market, flowing from mediation's dirty little secret are two separate but all-too-frequently confused fights. The first fight is between mediation and litigation for market share, which rallies to the banner of "growing the market."
The other fight, a product of exorbitant oversupply, is between mediators for work. These various fights - between individuals, between institutions, and between individuals bent on hijacking institutions for personal gain - have been ugly, and the latter at times have been shameful.
In both cases, the protagonists are energised by an entrenched presumption that mediation is morally superior to litigation. This is corrosive in a couple of respects. First, these lofty arguments rest on a supremely idealised vision of mediation which is common to all websites and text books, but which I sense is a world away from the grudging, bloody and resentful climbdowns of mediation in practice.
Secondly, more dangerously, it feeds a consequentialist mentality, an ends justify the means ethos - which once entered into is extremely difficult escape.
And so this is the second thing I'd change: a presumption of superior virtue on the part of mediators. As much as anything this is marketing: superiority doesn't sell.
The third, fourth and fifth things I'd change are related. Again they stem from the Dirty Little Secret. Were mediation more widely recognised as a molecule adrift in the high seas of litigation, mediator trainers and accrediters could not have pedalled a Jam Tomorrow line, vis a vis prospects of work, to an extent which is now beyond ridiculous. So let's look at the issue of oversupply of mediators.
3. At present, if the total number of civil mediations were shared out evenly among accredited mediators, on average, mediators would manage fewer than one mediation a year.
Astonishingly, there are now half as many mediators as there are independent barristers in the UK. Even so, training organisations proliferate - and are encouraged to do so - and more mediators are accredited each week.
Let's be clear: this is a scandal.
If 3% of trained and accredited mediators get any work as a mediator, I'd be surprised. The excuse that training mediators is a good way to spread the word about mediation, to my mind, stinks. Ripping off everyone who shows an interest in mediation - it hardly needs saying - is no way to grow the market. This brings me to the third thing I'd change: we must accept that there is no connection between training mediators in greater numbers and the throughput of cases in greater numbers.
As a post-script to that point, I should add that some organisations have already changed tack. Faced with the moral dilemma of taking money and delivering absolutely nothing, or ceasing to train until demand has risen to merit it, some organisations have a new wheeze. This is mediation as - and I quote - "a life skill." Life skills, in my view, belong to the fashionable genre of self-help and bring mediation into the orbit of New Age spirituality, bioelectric shields, energy cocoons and magic crystals. I find the life skill argument disingenuous and mildly embarrassing. This is a direction from which mediation should turn sharply away.
4. As said previously, the presumed connection between numbers of mediators and numbers of mediations, is a false one. The same logic, if applied to litigation, would see all litigators trained as judges in the hope that it would increase caseload. It doesn't happen, and for good reason.
This brings me to my fourth change: the reallocation of existing resources, experience and goodwill in which this sector is rich.
Given that the number of advisers at every mediation outnumber the number of mediators by an order of magnitude, on a numerical basis alone, there is a strong case for devoting more resources to training mediation advocates rather than mediators. But there are better reasons by far.
First, mediation advocacy isn't always practised well. Some advocates are well prepared; some aren't. Some are good negotiators, some aren't. Some use external counsel effectively, others don't. Some cases are brought at the right time, but many aren't. Some are brought because they lend themselves to mediation while others seek out mediation because civil justice is perceived to be broken. These are the factors which contribute to making each mediation unique, and accordingly difficult to plan for. They all, too, represent areas in which skilled advocates can make a difference, and merit greater attention.
Conversely, training would-be advocates as mediators, is a distraction. Time spent pondering how the mediator could, or should, have acted better (the "what I would have done" school of criticism) is time wasted.
This is my change number four. Resources wasted training more mediators would be more usefully and valuably spent on advocacy training. And who knows? It might even grow the field.
5. The Universal Mediator
Number Five. When frustrated mediators level their criticisms at working mediators - and trust me, there is no more opinionated and vituperative critic than the accredited and inevitably frustrated mediator - the language can be revealing. Critics, in my experience, tend to have strong views as to what the mediator should be doing at any one time, notwithstanding the fact that they don't, and can't, know what is going on in the other room.
Implicit in these criticisms is often a belief in the existence of a perfect mediator, a kind of universal ideal. I suspect this comes from the early part of mediator training: do this, don't do that - and is upheld by legal directories and the like, for which I'm partly responsible.
The perfect mediator mentality is most clearly demonstrated by those who push for further accreditation, more examinations, more scrutiny and defined standards.
For the reasons I mentioned just now in connection with advocacy, so much of mediation has to be improvised. It defies standardisation, and to thrive must continue to do so. Talking in terms of what's right and what's wrong for the mediator is therefore unhelpful, and striving for a universal ideal, I believe, is misguided.
And this is the fifth thing I'd change: we need wider recognition of different styles, approaches and models. I'd be interested to see some rigorous market research which could guide mediators towards styles which are wanted and needed.
In this respect there may be lessons from consumer marketing of food. 50 years ago in the United States manufacturers made a single pasta sauce, making it as faithful to a notionally perfect Italian recipe as they could. The public didn't buy it. What they subsequently discovered was that people's tastes fell into three categories: spicy, chunky or sweet. It's a lesson the supermarkets have learned and profited from, and I suspect a few defined flavours of mediator would better cater to the market's needs.
(If you'll indulge me in a slight tangent for a moment, there are other interesting parallels with food. A very clear majority of litigating solicitors I have spoken to tell me that they want evaluative - even merits based - mediation. And mediators tell them it's not on the menu. The parallel here, might be with coffee. If you pause to think of the kind of coffee you like in terms fragrance, colour and so forth, if you're like most people you're thinking "a rich, dark roast". In surveys, apparently, it's the answer everyone gives. Yet when you give them a rich dark roast, they heap in sugar, gallons of hot milk and sprinkle powdered chocolate on the top. The fact is that nobody likes a rich dark roast - but I still think I do.)
6. Panels
Returning to mediation. Another feature of the market which I find unattractive and actively unhelpful is the pointless proliferation of mediator panels. We have panels for practice areas - shipping, maritime, intellectual property, sport; we've got regional panels, nationals panels, international panels; we've got societies, institutes, chambers, law firms, charities, partnerships, not-for-profits, and pro-bono initiatives. This is seriously confusing.
To make matters worse, when you take a look who's on these panels, it's exactly the same people. I've seen a CV with 17 panel memberships listed. What on earth is the point? To my mind this sends the same message as a house with 17 estate agents' boards outside.
Where is the loyalty, where is the self-confidence?
The Civil Mediation Council is actively and proudly encouraging more panels. I believe that they should be discouraged, if not actively shut down.
They operate under the pretence of offering an assurance of quality. They do not. They can not. One doesn't need to be too cynical to suspect panels offer out mediators on the basis of a) how much of a margin they can make on them and b) how many months have elapsed since they last threw the hapless mediator a bone.
It seems obvious to me that what this market needs, and what it evidently lacks, is informed consumers. Those running panels often complain that mediation is a price sensitive purchase; that they get beaten down in a manner no litigation solicitor would countenance. I'm afraid this is an inevitable consequence of information asymmetry.
There is some Nobel Prize winning work on information asymmetry by economist Joseph Stiglitz, among others. Work, I believe, the mediation community would be well advised to learn from.
The asymmetry is between the buyers who know comparatively little, and those selling mediators who well know their mediator's skills and foibles. There are distinct advantages to those running panels to offer low-quality goods to the less informed; all the more so when panels take a greater percentage cut of the fees from less experienced mediators.
Knowing this, and without adequate independent information, buyers will only pay what they consider an average price based on the facts listed in a CV as a safeguard against overpaying for inferior goods. This may is what drives better mediators away from panels and into more credible setups like chambers.
My sixth change, therefore, is simple. No more panels.
Instead, the technology now exists for buyers to alert all mediators when they require a mediator. They can state their requirements with great precision and let those available, aproporiately qualified, and interested in the work, pitch for the business. Such a system also encourages buyers to collaborate in providing feedback and peer reviews.
This will answer a critical need for information and allow market forces to begin to regulate a market which is as bloated, confused and inefficient as any I can think of.
This mechanism, this network is called DisputesLoop and will launch in the coming fortnight on
www.disputesloop.comNow, I said at the beginning I'd be sensationalist, sanctimonious and hypocritical. I never said I'd be impartial. DisputesLoop, I confess, is my invention and my new business, and if you'll permit me, it is the seventh of my six changes to the market, and one I'd dearly love to see succeed.
Thank you for listening.
