The UK’s Justice Minister, Ken Clarke, recently announced significant reductions in the legal aid budget, which will affect people seeking financial support to pursue legal actions through civil and family courts. As part of the wider budget cuts currently being implemented by the UK government, following its spending reviews, legal aid for private law cases will now be scrapped in all but the most serious of cases, mostly those involving domestic violence or child welfare issues. The consequences for many will be that they can no longer use civil courts to resolve what are mostly matrimonial or family break-ups. However, these budget cuts will offer the mediation movement in the UK a unique opportunity. Currently, the majority of the UK population is relatively ignorant of mediation, what it is, and how it works. So the call by the Government for an increase in mediation to replace court action is especially welcome news for those working in family mediation.
We know that ADR in all its variant forms, such as mediation, has value beyond the scope of simply helping parties find agreement; there are deeper and more ethical principles embedded in the processes we employ. The significance and power of these processes has long been recognised, if not always used! Kofi Annan, former head of the UN, said we should: “seek peace even when powerful forces conspire against it.” His words echoed those of the Apostle Paul who, some 2000 years earlier, stated that humanity should “pursue the things that make for peace and the things by which one may edify another.” The book of Proverbs states: “Do not go hastily to court; for what will you do in the end, when your neighbour has put you to shame? Debate your case with your neighbour, and do not disclose the secrets to another, lest he who hears it expose your shame and your reputation be ruined.” These words, written some 2,500 years ago, would appear to reflect a number of modern mediation practices such as patience, confidentiality, dialogue and cost-benefit analysis!
Yet in the UK, and some other parts of Europe, I sense a developing tension between the ADR and legal profession. At a recent Mediators’ Breakfast in London, a senior partner of a City law firm stood up and said: “the mediation movement is at risk of doing society a great injustice.” He went on to state how the lawyers will identify and defend the rights of their clients, intimating that mediators might allow parties to compromise or even cede their rights. It occurred to me, amid some of the quiet gasps from the audience, that the basic principles of mediation were perhaps lost on this man as he continued describing how he looked for mediators who would seek to promote his clients’ rights, missing the point of impartiality entirely! Not only that, but he also appeared not to understand the principles behind mediation that encourage people to consider responsibilities over rights and to identify needs rather than wants. There was of course that unspoken elephant in the room that no-one dared speak of - fees!
Whilst lawyers do an important job and often do protect people from making big mistakes, the fact is they are in the business of law, and like any other business, it is there to make money. Globally, lawyers make hundreds of billons a year out of other people’s troubles and misery. Of course the lawyer would try to mitigate their role by arguing that ADR professionals also make money from people’s troubles and this is true, we do. However, there are (in my opinion) some undeniable differences between ADR and litigation - and I stand ready to be shot at!
Litigation seems to me, to be fundamentally about identifying and protecting rights, making demands and engaging in adversarial activity. It can become a long and protracted process and is usually fearsomely expensive. Mediation conversely, is about taking responsibility and focusing not on rights and wants, but responsibilities and needs. It endeavours to find solutions more effectively, avoiding the courts with their associated costs, and leads the parties down the royal road to maturity by working together. Something the UK could do with developing!