Would a register help mediation services grow?

Published on Tuesday 10 April 2007 00:05

FROM commercial disputes to the breakdown of family relationships, mediation is increasingly billed as a cost-effective and constructive alternative to litigation.

But, without any recognised standard training for mediators and no system of regulation, can consumers - or the judges who are being urged to refer parties for mediation - have confidence in the process?

Many solicitors are now trained in mediation and alternative dispute resolution (ADR), particularly in commercial cases, and in family law, where litigation is seen as a last resort. But a legal qualification is far from a prerequisite to be a mediator - and many such services are provided by the voluntary sector. Yet this presents a problem: anyone can call themselves a mediator, regardless of their skills or experience.

While those who have little or no training are unlikely to get work until they have built a solid reputation in the marketplace, there are now moves towards introducing a system of quality control.

The Scottish Mediation Network (SMN) has been consulting on a draft action plan for a new register of mediators, which will aim to set benchmark standards, both for individual mediators and trainers.

The only professional bodies currently accrediting mediators in the UK are the CEDR (Centre for Effective Dispute Resolution) and the Chartered Institute of Arbitrators (CIArb). In Scotland, a leading provider is Edinburgh-based Core Mediation, established by John Sturrock QC.

The SMN is hoping to agree a set of minimum standards for individual mediators, regardless of their sphere of work, and to ensure they have been trained by a mediator with adequate training and experience.

The benchmark standards are also set to include a requirement for continuing practice development, and for mediators to follow a code of conduct. However, it is expected that joining the register will be voluntary - and there are no plans to check the credentials of individual mediators.

The move reflects an ongoing international debate as to whether a professional body should be established to accredit the training of mediators and whether any core skills can actually be agreed.

South of the Border, there is little consensus on the way forward, and some leading mediators are worried that regulation may be imposed on them. In February, CIArb devoted an entire edition of its journal, Arbitration, to the subject, recognising that 38 per cent of its membership is involved in mediation. Writing in the journal, CIArb arbitrator and CEDR accredited mediator Sir Brian Neill says there is a risk some type of formal regulation may be forced on mediators.

"There is always a real possibility of legislation and some measure of control exercised from Brussels but I hope any legislation avoids being too prescriptive," he writes. "Mediation and ADR are at a stage of development - it is important to retain flexibility."

In Scotland, some leading mediators question whether even a self-regulatory system is necessary. Pamela Lyall, the director of Core's mediation services, says: "While quality assurance is essential, and some self-regulation of mediation will help to engender confidence and develop appropriate standards, there are disadvantages in an over-regulated mediation profession. It may tend to favour existing mediators at the expense of prospective practitioners, and could lead to increased mediation costs."

Lyall adds that it could hamper attempts to provide a more flexible alternative to the courts: "Regulation could lead to institutionalisation and rigidity of practice in a process which offers flexibility when contrasted with the formality associated with other processes, including court proceedings.

"Of more importance is that over-regulation could stifle the very innovation that has led to the growth and diversity of mediation provision. There is no evidence of actual or perceived harm to consumers to justify significant intervention."

Ewan Malcolm, the director of the Scottish Mediation Network, agrees that there is no suggestion that there is a problem with the quality of mediation services. But he believes the register will be an important tool in reassuring consumers in the future.

"Trained people with clear ethical and practice standards are at this moment mediating through out the country," he says. "They promise the parties confidentiality, so you will not read their stories in the paper or see them on TV, but they are there, working away quietly. A year ago we launched a consensus building process that resulted in this action plan to create a Scottish Mediation Register.

"The main driver for this project is a need to develop greater public confidence in mediation by offering reassurance about standards. We have also found a common interest in making mediation more easily accessible by bringing the diverse spheres of mediation together. We think that a clear and informative web based register will improve understanding, accountability and the development of excellence."

The network is also keen to boost its credibility as Lord Gill embarks on his review of the civil courts system. Martyn Evans, the director of the Scottish Consumer Council, has already called for a "more user-friendly system, which will allow consumers to resolve their disputes more quickly, cheaply and easily than at present".

Malcolm believes mediation fits the consumer lobby's bill: "I expect the Scottish Mediation Register will be useful in light of the work of the Gill Review of Civil Justice.

"Also, the Sheriff Court Rules Council has been considering changes that could explicitly permit sheriffs to refer cases to mediation. Information about the quality of mediators against benchmark standards is an important element in allowing mediation to be used as an option."

• www.scottishmediation.org.uk