PROPERLY supplied mediation can negate the requirement for the parties involved to resort to expensive court action, says Graham Boyack.
AT the time when people are thinking about resolutions for the year ahead, it is appropriate that we turn our thoughts to a resolutions based approach to complaints and disputes.
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Queen Margaret University’s Consumer Insight Centre has recently published a report that looks at Alternative Dispute Resolution (ADR- by which is meant ways of resolving disputes without going to court) approaches for the Legal Ombudsman and their conclusions are that there are a range of ways of designing ADR systems for organisations and their customers to resolve disputes.
Their analysis of the use of mediation points to different approaches that can be used depending on the nature of the issues that are presented. Their study show that different approaches to mediation can be used to deal effectively in different situations with different issues They looked at the Irish Financial Ombudsman’s mediation process which is used to resolve high value/difficult cases and concluded that their system works well for that type of case. The mediation used relied on the mediator devoting considerable time and effort with the parties to resolve the dispute. They also looked at the Small Claims Mediation Service which works on court-based cases in England and Wales. They limit the time of their mediations, which is normally an hour, and carry out the mediation by telephone, which has the added advantage that people do not need to attend a court in order for the case to be resolved.
Her Majesty’s Court and Tribunals Service (HMCTS) service is dealing with thousands of mediations a year and settlement rates of 62 per cent are being achieved with 94.4 per cent of respondents saying they would use mediation again.
In Scotland, mediation is being used by the Scottish Legal Complaints Commission to resolve issues related to the provision of legal services. Their recent annual report stated that 91 per cent would recommend mediation to others and that 67 per cent of mediations were successful. It is also interesting to note that there has been a 41 per cent increase in the number of mediations carried out.
The reports from Queen Margaret University and the Scottish Legal Complaints Commission highlight that there is a lot of mediation taking place to resolve everyday disputes and complaints throughout the UK and, more importantly, that there is a great potential for it to be used in more areas than it is currently being used in Scotland.
This new year will see the implementation of the European Directive on Alternative Dispute Resolution and Online Dispute Resolution. In basic terms, this requires organisations to have considered how they would provide access to Alternative Dispute Resolution for their customers.
The UK government is currently working through what provision will be available and the process represents an opportunity to improve how disputes are resolved, both from the perspective of customers and also for the organisations involved.
From the Network’s perspective, the increased use of mediation is welcome, as it provides people with a choice in how they can resolve their disputes and in many cases the process is much more focused on the needs of those involved, than it would be if the dispute was dealt with using litigation.
The Scottish Government has set itself the aim of building a fairer Scotland and the wider use of mediation could contribute significantly to achieving this important aim.
Not only can mediation be used in formal processes such as referred to above, but the Network also recognises the ability of people to use the skills of mediation on a day-to-day basis in their personal and professional lives.
Key mediation skills include active listening, questioning, summarising, reframing, and reality-testing, to name but a few. People who have experienced mediation skills training are often more able to help others resolve their disputes without a mediator being required and are better equipped to recognise when the services of an independent mediator would be helpful.
An increased number of people practising mediation skills would have a number of potential benefits. The first is that if people are able to resolve their disputes early and in a way which engages them, that has to be good for society.
The second is that for the people and organisations involved, complaints and disputes that become mired in either complex systems and/or in the courts, can be very expensive and divert people from more important priorities.
The third is a wider benefit for society in that those with greater skills would be able to apply these within their communities. From the great work carried out by organisations such as the Cyrenians, Relationships Scotland, Shelter and others, we know that the use of mediation can help towards resolving issues such as homelessness and relationship breakdown.
If people had the skills to be able to engage better with others that would surely help to reduce some of the social problems that our society currently faces.
My resolution for 2015 is to promote the wider resolution of disputes by mediation and also to encourage the spread of the skills that are involved.
• Graham Boyack is Director of the Scottish Mediation Network