At the outset of the on-going story into phone hacking at the News of the World no-one could have predicted exactly how whole institutions; the government, the police and the media, would have become embroiled. The reverberations of this affairs are certainly being felt within the legal sector where various firms and specialists are preparing for the challenges that are yet to come. Many of the alleged “wrong doings” that have emerged will rightly be looked at through criminal channels however there will be other elements that might be fought out in the civil courts. Yet whatever the process being used in resolving these disputes it is always appropriate to ask the question ‘Can we do this in a smarter way?’

Resolving the Public Issues

Whilst the British Public understandably finds many of the hacking, bribery and cronyism allegations outrageous and disturbing, we must attempt to understand what has happened and, critically, why it happened. One cannot just look at “the teeth marks in the gingerbread house” and the part-chewed chunks of candy window-frame, one has to follow this trail of breadcrumbs back to the source and discover the motivations behind the subsequent actions. The upcoming public Inquiry is expected to investigate, apportion responsibility and then deliver recommendations to ensure we avoid this happening again. Meanwhile the police are undertaking a criminal investigation into the phone hacking scandal.

Whilst all these processes are underway, there has been little if any discussion around the potential for a mediated process to be employed. A mediated investigative approach may give those parties involved a chance to discuss openly the reasons behind the hacking and for those that were the victims of it how they were affected.

The BBC reported this morning that MP’s yesterday discussed the news that a suspected 12,800 people may have been the victims of phone hacking, whilst only 170 of them had so far been involved in the investigation. Having the alleged perpetrators in a room with a committee being faced with detailed questions might pose a challenge, but the idea of dealing with the families of the victims of murder, the mothers and fathers of those soldiers that gave their lives for their country is a whole other challenge. At CEDR we have successfully designed and implemented process for resolving issues as complex as the Alder Hey retained organs scandal and the Kenyan Tribes People against the UK Ministry of Defence. We know it can be done.

And the Private Issues

Yet there is also the professional side to this confusion. With share prices plummeting, calls of negligence and dereliction of duty, plus allegations of liable and slander there will be many, many disputes still to come in the wake of this scandal. Then of course there are potential dismissals from newspapers, the police or even other organisations yet to be thought of. In impassioned disputes like these it is only natural that one or both sides will want to be proven to be “in the right” yet this is not (necessarily) the same thing as receiving restitution.

A neutral process where a skilled, trained individual can mediate between the different sides’ interests can ensure they each get as close to what they need as possible. This effective form of resolution can be invaluable to ensuring that lives are not put on hold for months or even years while disputes and resentments rage unaddressed. There is an important role here for the legal community here too, not to be swept up in the heightened emotions that their clients will be facing, but to look after best interests by using the most appropriate processes.

And so…

These have been remarkable weeks for the information that has emerged and the attention that has been captivated around the world. The scope of what has happened and how it could be resolved should not mean that we forget that sometimes you don’t need a sledgehammer of a process to get the right result.

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By Eileen Carroll

Eileen Carroll is a mediator and deputy chief executive at CEDR. She is recognised as one of the pioneers of mediation techniques in the U.K and with over 20 years’ experience as a practising mediator, she is one of the most senior and highly regarded mediators in the country. Eileen’s mediation practice has a very broad commercial perspective, working with clients on claims relating to dozens of different sectors and activities. She has mediated disputes involving banks, insurance companies, media, multinationals, sovereign states and private individuals in the UK and internationally.